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Saturday, July 16, 2016

From the LawBlogs – Week ending July 16, 2016


From the LawBlogs – Week ending July 16, 2016

[Internet links highlighted in color]

Posted by Justia


“Petitioner, after more than fifteen years of service in the City of Providence, [Rhode Island] Police Department, was injured while on duty. The Department concluded that Petitioner’s injury interfered with her ability to handle a firearm. Later that month, Petitioner applied to the City of Providence Retirement Board for accidental-disability retirement. The Board voted to deny Petitioner’s application, finding that Petitioner’s condition was correctable with surgery and that Petitioner failed to mitigate her injury by undergoing surgery. The Supreme Court quashed the Board’s decision, holding that the Providence Code of Ordinances does not require an otherwise eligible employee to mitigate her injury by undergoing a surgical procedure in order to qualify for an accidental-disability pension. Remanded.”

N.B. Among the rulings by New York courts on the issue of "directing an employee to submit to surgery" are the following:

In Schenectady PBA v PERB, 196 A.D.2d 171, the Appellate Divisions said that General Municipal Law "§207-c evinces a legislative intent to balance a police officer's right to receive full salary and certain benefits while disabled due to an injury incurred in the line of duty, with certain rights of the employer, including the right to have the employee submit to medical and surgical treatment, and to obligate the injured officers to perform light duty if able," as §207-c expressly authorized an employer to discontinue paying benefits if the injured officer refused to accept light duty assignments or refused medical treatment.

In contrast, in Kauffman v Dolce, 216 A.D.2d 298 the critical issue concerned City of White Plains Firefighter Kauffman’s refusal to undergo surgery for a second time. The City terminated his General Municipal Law §207-a disability benefits on the ground that his refusal undergo the second surgery constituted a waiver of his right to these benefits. Supreme Court reinstated Kauffman's §207-a benefits, finding that his refusal to undergo surgery a second time was reasonable in light of the unsuccessful previous surgery and "the lack of the likelihood of success of the proposed surgery." The Appellate Division sustained the lower court's ruling, observing that the Court of Appeals' holding in Schenectady Police Benevolent Association v Public Employment Relations Board, 85 NY2d 480, that a municipality could require police officers receiving General Municipal Law 207-c benefits to undergo corrective surgery "under appropriate circumstances ... where reasonable,"  did not apply in Kauffman's situation.

A school teacher who had lost an eye as the result of an injury on the job refused to undergo eye surgery involving the other eye because of the problems which could result. Such refusal was held reasonable by the Workers' Compensation Board. When the insurance carrier appealed, the Appellate Division affirmed the Workers' Compensation Board's determination,  holding  that the Board's finding that the teacher's refusal was reasonable under the circumstances was supported by the record (Burroughs v Goshen Public Schools, 98 A.D.2d 891).


Posted by Employment Law Daily

By David Stephanides, Esq.

A local police department was proud of its reputation for stopping alcohol- or drug-impaired drivers passing through its city, and it encouraged its officers to make a high volume of stops. A well-respected officer decided, on his own initiative, to be more aggressive with his traffic stops to get his numbers up (City of Chaska, Minnesota and Law Enforcement Labor Services, Inc., Local No. 210, St. Paul, Minnesota, Feb. 19, 2016, Richard Miller, Arbitrator).


By Dave Strausfeld, J.D.

The Wisconsin Division of Motor Vehicles was not required to rely on a direct-threat defense in a discriminatory discharge suit brought by an employee with a mental health disability whose behavior raised safety concerns, so it did not need to bear the burden of proof associated with that affirmative defense, held the Seventh Circuit, affirming summary judgment dismissing her Rehabilitation Act claim. Rather, it could simply argue she failed to make a showing that she was “otherwise qualified” for her position, and on this issue she bore the evidentiary burden. Sending her for an independent medical examination did not necessarily trigger the direct-threat framework (Felix v. Wisconsin Department of Transportation, July 6, 2016, Rovner, I.).


By Dave Strausfeld, J.D.

The First Amendment might protect a police sergeant from retaliation for aiding an FBI investigation into corruption by police department and town officials, held the Fifth Circuit, reversing a summary judgment ruling. His involvement in the FBI investigation did not appear to be within the ordinary perimeters of his job duties, especially since he was forbidden to disclose it to anyone in the police department, so he appeared to be communicating with the FBI in his capacity as a “citizen.” But on a separate issue, he did not state a False Claims Act whistleblower retaliation claim against individual town officials because a 2009 amendment did not expand the FCA to provide individual liability (Howell v. Town of Ball, July 1, 2016, Jolly, E.).

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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