April 2019 AELE publication alert

The April 2019 issue of AELE's Fire, Police and Corrections Personnel Reporter is now available online.

It includes material concerning age discrimination, arbitration procedures, defamation, the First Amendment, secondary employment [a.k.a. moonlighting], handicap/abilities discrimination, including handicap accommodation in general, pregnancy discrimination, racial harassment, and taxation.

View at: http://www.aele.org/law/2019all04/FP2019APR.html

A party not the individual's employer may not be held liable alleged adverse employment actions

The Appellate Division unanimously affirmed Supreme Court's granting the defendant's motion to dismiss Petitioner's complaint, explaining that Plaintiff's allegations relating to disability retirement recommendations of the Police Pension Fund's Medical Board are misdirected as [a] the Police Pension Fund is a corporate entity independent and distinct from the police department or the City of New York and [b] is not Plaintiff's employer.

Accordingly, the Appellate Division opined that "Defendants cannot be held liable for the Police Pension Fund's alleged adverse employment actions." 

Other procedural defects noted by the Appellate Division:

1. Petitioner's allegations of employment discrimination based on events that occurred before April 8, 2011 are time-barred under the applicable three-year statute of limitations [see CPLR 214[2]; Administrative Code of City of NY § 8-502[d] and the Continuous Violation Doctrine does not apply in this instance; and

2. Plaintiff's timely allegations fail to state viable claims sounding in unlawful employment discrimination.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2018/2018_09027.htm

Excessed educator claims back pay, benefits and pension credit based on the appointing authority's alleged failure to reinstate her from the preferred eligible list

The genesis of this appeal to the Commissioner of Education was a notice sent to petitioner [Appellant] that her elementary tenure area position would be abolished effective July 1, 2003 and that her name would be placed on a preferred eligible list. Appellant challenged a number of the actions taken by the appointing authority [Employer] in the course of processing her for reinstatement to a position in her tenure area. Essentially Appellant contended that the actions taken by Employer were inconsistent with her rights as an individual eligible to be reinstated to a position from a preferred eligible list.*

The issue  before the Commissioner concerned Appellant's assertion that Employer:

[1] unlawfully filled teaching vacancies by temporary appointment before recalling Appellant who was the most senior qualified teacher on the preferred eligible list; and

[2] her demand for back pay, benefits and pension credit to which she claimed she was entitled as a result of such alleged "unlawful appointments" and other actions by the Employer.

Employer, in rebuttal, contended that:

[a] It had acted in good faith;

[b] Appellant failed to meet her burden of demonstrating a clear right to the relief she sought in that she did not, or could not, demonstrate that she performed the duties one of the positions sought while serving in her former position within the meaning of the relevant law and regulations;

[c] Appellant's petition failed to state a cause of action;

[d] Appellant's petition was untimely and moot;

[e] Appellant did not attempt, or failed, to mitigate her damages; and

[f] Appellant failed to serve certain necessary parties with a notice of her appeal and copies of the complaint.

After addressing a number of the procedural concerns raised by the parties involving timeliness, service and verification of certain filings, the Commissioner ruled that they lacked merit, as did Employer's contention that Applicant had not named and served certain individuals as "necessary parties".

With respect to Employer's contention concerning necessary parties, the Commissioner explained that "[a] party whose rights would be adversely affected by a determination of an appeal in favor of a Appellant is a necessary party and must be joined as such." Here, however, the Commissioner noted that the record indicated that both of the individuals Employer claimed were necessary parties had resigned from their respective positions with the Employer in 2008 and, therefore, would not be adversely affected by a decision in this appeal.  Further, opined the Commissioner, as Appellant is only seeking back pay, benefits and pension credit and not reinstatement to her former position, Appellant had joined all necessary parties.

The Commissioner also rejected Employer's argument that the appeal must be dismissed as moot because Appellant had retired in 2010.  Noting that an employee’s preferred eligible list recall rights do not survive his or her formal retirement unless it can be demonstrated that the individual's decision to retire was involuntary or made under duress the Commissioner found that the record showed Appellant did not claim that her retirement was involuntary or made under duress. Further, said the Commissioner, Appellant is not claiming a recall right to a vacancy that occurred or was created after her retirement, but rather she is claiming a right to back pay, benefits and pension credit based on Employer's alleged failure to reinstate her from the preferred eligible list her to a position in the elementary tenure area prior to her retirement that was the subject of pending litigation at the time of her retirement. 

Accordingly, the Commissioner, in consideration of an earlier court decision involving the same parties, that determined that "the Commissioner has primary jurisdiction over the issue of similarity of positions," declined to dismiss the appeal as moot.

Turning to the merits of the appeal, the Commissioner indicated that Appellant’s recall rights, if any, are to appointment to vacancies in a position similar to the position she formerly held.  On this record the Commissioner found that Employer had offered Appellant the positions that were in compliance with the recall requirements set out in Education Law §3013 and concluded that Appellant’s claim that she was justified in refusing to accept or ignoring offers of reinstatement to a teacher of pre-school position was meritless. 

The language that Appellant found "unacceptably ambiguous" in Employer' letter advising her that she was being reinstated from the preferred eligible list stated "[p]lease be advised, since you are on the preferred eligibility list, you may have rights to this position.  However, we do have to recall in order of seniority."

Clearly, said the Commissioner, the letter extended an offer of appointment to the position was conditioned only on Appellant having the greatest length of service of the persons on the appropriate preferred eligible list, a statutory requirements set out in Education Law §3013, and the record indicated that Appellant did, in fact, have the greatest seniority of the teachers on the preferred eligible list at issue.**

Noting that Employer's attorney had clearly and unambiguously confirmed in writing that Appellant would be appointed if she accepted the position, the Commissioner ruled that under the circumstances, Appellant, by failing to accept the position, "rejected Employer’s unconditional offer of appointment and could not claim a right to reinstatement to the ... position." As a result, Appellant could not assert a right to back pay, benefits and pension benefits based on Employer's failure to appoint her to that position.

Subsequently Appellate failed to respond to a second, similar letter from Employer's director of human resources requesting that she either accept or decline yet another position.  As was the case with the earlier event, the Commissioner found that Appellant, by failing to accept the position, rejected Employer's unconditional offer of appointment and could not claim a right to reinstatement to that position nor a right to back pay, benefits and pension benefits based on Employer's failure to appoint her to that position.

However, Appellant also claimed a right to back pay, benefits and pension credit based on Employer's failure to reinstate her to a third position in the "family literacy educator" tenure area for the 2006-2007 school year. As there was nothing in the record indicating that Employer offered to appoint Appellant to any of those positions in that tenure area from the preferred eligible list, Appellant’s right to relief depends on whether the position of family literacy educator was similar to that of Appellant’s former position.

In consideration of evidence in the record addressing the duties of these positions, the Commissioner concluded that Appellant failed to meet her burden of proving that 50 percent or more of the duties of the two family literacy educator positions available in the 2006-2007 school year were similar to the duties of her former position in the tenure area of "teacher of gifted and talented education."

The bottom line: the  Commissioner dismissed the instant appeal in its entirety.

* Employer's human resources director's sent Appellant a letter notifying her that a vacant position existed within the Employer and asked her to accept or decline the position.  Appellant responded, asserting that the letter was too ambiguous and was not a final determination that she would be appointed to the teacher position and asked for "a valid offer of re-employment to enable her to make an informed decision." Employer's attorney wrote to Appellant's attorney that if Applicant either signed the settlement agreement or indicated acceptance of the position in response to the recall letter, she would be appointed to the position. Appellant did not accept or decline the pre-school teacher position and the position was filled by another individual. Employer later sent Appellant an unconditional employment offer and requested that that she indicate her willingness to accept or reject this position by a specified date.  Appellant did not respond to the notification and, again, the position was filled by another individual. Ultimately Employer removed Appellant from the preferred eligibility list after seven years had passed from the date on which Appellant’s position had been abolished [see §3013.3]. 

** It should be noted that a preferred list for a particular title or position is a "moving target" as names are added to it to reflect the reinstatement rights of individuals excessed as the result of subsequent layoffs. Preferred eligible lists are revised to reflect "seniority rank order" of individuals added to, or deleted from, the list over time.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17601

The continuing violation exception when filing of a complaint alleging a violation of New York State's Human Rights Law is not triggered by a single event

Petitioner appealed Supreme Court's granting the New York State Office for People with Developmental Disabilities' [OPDM] pre-answer motion to dismiss the Petitioner's complaint alleging unlawful discrimination in violation of New York State's Human Rights Law based on OPDM's rejection of her application for employment as "time-barred".

The Appellate Division affirmed the lower court's ruling.

Noting that OPDM had the initial burden of establishing, prima facie, that Petitioner's cause of action was untimely filed, the Appellate Division said that OPDM had established that the last discriminatory act set forth in the Petitioner's complaint occurred on August 30, 2013. Accordingly Petitioner's cause of action accrued, and the three-year statute of limitations for the Human Rights Law began to run, on that date. However, Plaintiff did not file her complaint until March 10, 2017, more than six months after the statute of limitations period had expired.

OPDM, having made a prima facie showing that Petitioner action was untimely, shifted the burden of going forward to Petitioner to establish that some exception to the limitations period applied in her situation that would allow her lawsuit to go forward. Petitioner attempted to do so by alleging that the continuing violation exception was applicable in her situation and thus her action had been timely filed.

The Appellate Division disagreed, concluding that Petitioner had failed to meet her burden of proof. Assuming, but not conceding, that the denial of Petitioner's application for employment constituted an act of unlawful discrimination, this constituted but a "single act" rather than evidence of "an ongoing policy of discrimination." 

The court explained that a single act of unlawful discrimination does not trigger the continuing violation exception and thus the running of the statute of limitations had not been tolled and had expired "six or more months" prior to the date on which Petitioner had filed her complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01887.htm

Judicial review of student disciplinary action taken by a private college or university is limited to whether the institution substantially complied with its own rules

A New York Supreme Court denied a petition filed by a student [Student] attending a private institution of higher education [Institution]. Student had asked the court to annul the Institution's decision affirming a hearing committee's suspending the Student for one semester based on its finding that Student had engaged in academic dishonesty -- forging an examination booklet. Student appealed the Supreme Court's decision, arguing that the disciplinary action taken by the Institution violated his right to "due process."*

The Appellate Division commenced its review of Student's appeal by observing that Student's "due process" challenge was misplaced. Citing Cavanagh v Cathedral Preparatory Seminary, 284 AD2d 360, among other decisions, the court explained that a student at a private university is not afforded the "full panoply" of due process rights that might be available to a student at a public institution of higher education.

Accordingly, in the absence of any "State involvement," the only issue for review by the court is whether the institution substantially complied with [1] its own rules; [2]  was made in accordance with its written disciplinary policy; and [3] was rationally based and not arbitrary and capricious.

Turning to the Institution's procedures, the Appellate Division observed that Student "had ample opportunity at the hearing to defend his conduct and explain his actions." However, said the court, the Institution's rejection of Student's explanation as not credible was not irrational nor was the denial of Student's internal appeal irrational. The Institutions' written policy provided for limited grounds for appeal, "none of which availed Student."

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and  Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division opined that there was nothing shocking or disproportionate about the one-semester suspension imposed on Student.

Addressing another issue, Student's allegation that the Institution had defamed him, the Appellate Division held that Supreme Court's dismissal of his defamation claim was correct because:

1. The subject statements were true;

2. The statements had not been published to any persons outside the university; and

3. The Institution's statements were protected by a qualified common interest privilege.

As to Student's allegations of malice, the Appellate Division said that this amounted to little more than "mere surmise and conjecture" and therefore was insufficient to overcome the Institution's qualified common interest privilege.

* Another issue addressed in this action involve Student's allegation that he had been defamed by the disciplinary action taken against him by Institution.

** The so-called "Pell Doctrine" defines a reasonable disciplinary penalty as one that is "neither arbitrary and capricious nor so disproportionate to the offense as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01720.htm

Upon permanent appointment to a position in the classified service the officer or employee is typically required to serve a specified minimum period of probation, but not to exceed a specified maximum period of probation.

Upon permanent appointment to a position in the classified service the officer or employee is typically set in terms of his or her serving  [1] a specified minimum period of probation and [2] a specified maximum period of probation.

The appointing authorities may be given discretion to waive a limited period of a probationary officer's or employee's absence during his or her probationary period pursuant to the rules of the responsible civil service commission. Otherwise the minimum and maximum periods of the probationary term of the officer or the employee is extended by the number of workdays of such absences are not counted as "time served" during the individual's probationary period.”* As the Court of Appeals held in Boyle v Koch, 68 NY2d 60, an employee's probationary period may be extended in the event the employee is given a “light duty” or some other alternate assignment while serving as a probationer. 

In this action the petitioner [Probationer] was permanently appointed to his position effective May 16, 2013 and his probationary period was set at not less than two-month and not more than two-years. When Probationer was subsequently terminated from his position effective March 2, 2016, he initiated an Article 78 action contending that his probationary period had ended prior to the termination of his employment and was a tenured employee entitled to notice and hearing as a condition precedent to his termination from his position. In effect, Probationer argued that he had attained tenure by estoppel.

Citing Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520, the Appellate Division explained that a probationary employee may "be dismissed for almost any reason, or for no reason at all" after completing his or her minimum period of probation and before the end of his or her maximum period of probation without a hearing and without a statement of reasons for his or her termination in the absence of evidence that the termination was "in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

Probationer, however, contended that he had attained tenure** in his position upon his being continued in service after he had completed the minimum two-month period of his probationary period.

The Appellate Division disagreed, noting that the two-month minimum period of probation was simply the beginning portion of the two-year probationary term during which two-month period he could be terminated only upon notice and hearing.*** Further, opined the court, the appointing authority is not required to advise a probationer that his or her probationary term of service is to be continued after the completion of his or her initial two-month period of probationary service.

The Appellate Division said it agreed with the Supreme Court's determination that the termination of Probationer's employment occurred while he was still a probationary employee in view of the fact that his probationary period had been extended due to his absences during his probationary period as a period of probationary employment is measured by the number of days a probationer is actually working at the job and "may be extended by the number of days that the probationary employee does not perform the duties of the position."

In addition, the City maintained that Probationer had not acquired tenure in the position by reason of his having been continued in service after he had completed his maximum period of probation. Rather the Probationer was terminated before having completing his maximum period of probation as his probationary term had been extended [1] by the number of days that he was required to work but was absent; and [2]  by his agreeing to extension his probationary period  based upon his attendance, punctuality, and disciplinary records.

Finding that Probationer had failed to demonstrate that the termination of his employment during his probationary period was made in bad faith or for a constitutionally impermissible or an illegal purpose or in violation of statutory or decisional law, the Appellate Division sustained the Supreme Court's ruling denying Probationer's petition and dismissing the proceeding.

* See, for example, 4 NYCRR 4.5(g), “Absence during probationary term”.

** The decision implies that a probationary appointment does not become permanent until the completion of the minimum period of probation. As a general rule, an individual is initially appointed to the position as "permanent" effective on the date of his or her appointment but does not attain tenure in the position until [1] he or she satisfactorily completes his or her maximum period of probation or [2] acquires tenure by estoppel or [3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

*** In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_02093.htm

Religious Accommodations in the Workplace

   Links to material posted on the Internet highlighted in COLOR

The New York State Division of Human Rights announced a statewide public education campaign to remind New Yorkers about their legal rights and protections regarding religious accommodation in the workplace. The Division has partnered with local chambers of commerce to make employers aware of their legal obligations and responsibilities in providing religious accommodations to applicants and employees. The Division has also created a brochurefor workers, informing them of the ways in which New York State law allows for religious accommodation and protection. Through these efforts, the Division seeks to reduce the potential for religious discrimination, harassment and retaliation in the workplace.

“With the sacred holidays of Easter, Passover and Ramadan just around the corner, it’s important that New Yorkers of all faiths know that they do not have to choose between their faith and a paycheck,” Division of Human Rights Commissioner Helen Diane Foster said. “Our great state is made even greater by the presence and contributions of all of our citizens, regardless of their religion. The Division is committed to protecting the rights of all those who seek to balance work responsibilities while also faithfully observing their religious tradition.” 

This public education campaign kicks off with the Utica Chamber of Commerce, while additional sessions will be held in Buffalo, Ithaca, Syracuse, Rochester and Westchesterthroughout April and May. This effort advances the Governor’s Justice Agenda and his commitment to protecting the rights and freedoms of all New Yorkers.   

Unemployment insurance benefits unavailable to claimant found to have engaged in disqualifying misconduct

§75 of the Civil Service Law permits the appointing authority to place an officer or an employee served with disciplinary charges on leave without pay for up to 30-days pending the completion of the disciplinary hearing and the determination of the penalty to be imposed in the event the officer or the employee is found guilty of one or more of the charges and specifications filed against him or her.* This absence is deemed "disqualifying misconduct" for the purposed of eligibility for unemployment benefits associated with such absence and thereafter.

An individual [Claimant] employed by a municipality was alleged to have committed numerous violations of her employer's code of conduct by, among other things, failing to report to work on time, being absent without authorization, sleeping and lounging during her shift and refusing to comply with her supervisor's directives. 

The employer placed Claimant on a 30-day suspension without pay and served Claimant with disciplinary charges pursuant to Civil Service Law §75. The penalty proposed by the employer: Termination.

Claimant applied for unemployment insurance benefits during the period of her 30-day suspension without pay. The Department of Labor initially granted her application but subsequently issued a revised determination finding, among other things, that Claimant was not eligible to receive benefits during this time period "because she had engaged in disqualifying misconduct."

Following a hearing, an Unemployment Administrative Law Judge upheld the Department of Labor's revised determination that found Claimant ineligible for benefits because of her disqualifying misconduct and ruled, among other things, that due to Claimant's misconduct, the remuneration paid to her prior to the effective date of her  suspension without pay could not be used to establish a valid original claim for unemployment insurance benefits.** The Unemployment Insurance Appeal Board sustained the Administrative Law Judge's decision in this regard, and Claimant appealed the Board's decision.

The Appellate Division affirmed the Board's ruling. The court noted that a claimant's excessive tardiness, absenteeism and insubordination has been found to constitute disqualifying misconduct for the purpose of determining an individual's eligibility for unemployment insurance benefits. Further, said the court,  "The many instances of [Claimant's] problematic behavior and failure to abide by the employer's code of conduct are well supported by the record."

The court noted that while Claimant admitted to certain acts of misconduct, with respect to her alleged "sleeping during her shift" Claimant contended that she suffers from a disability that interfered with her ability to work during her night shift. However, noted the Appellate Division, Claimant failed to produce medical proof at the hearing to substantiate this claim.

The Appellate Division concluded that substantial evidence supported the Board's decision finding that the remuneration paid to Claimant prior to her placement on a 30-day suspension without pay could not be used to establish a valid original claim.

* In the event an officer or employee is found not guilty of all charges and specifications he or she is reinstated to the position with back salary and benefits. In the event the officer or employee is found guilty, the time during which an officer or employee was suspended without pay may be considered as part of the penalty.

** Claimant was still employed by the employer on the date her Unemployment Insurance hearing was conducted  as the disciplinary action being taken against her pursuant to Civil Service Law §75 was then still pending. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01880.htm

Disregarding unrebutted medical evidence in the record supporting an application for accidental disability retirement benefits fatal to the Medical Board and the Board of Trustees rejecting the application

Petitioner's application for accident disability retirement (ADR) benefits was rejected by both the Medical Board and the Board of Trustees. The Appellate Division unanimously annulled these decisions, on the law, and the matter remanded for further proceedings.

Petitioner, said the Appellate Division, had met his burden in establishing that he was entitled to ADR benefits by presenting:

 [1] the reports of his treating physicians, including the surgeon who performed his spinal surgery;

[2] the line-of-duty (LOD) accident reports indicating neck and back injuries;

[3] the contemporaneous emergency room reports also documenting neck and back pain; and

[4] MRIs from 2010 and 2011 revealing disc herniation, disc degeneration, and stenosis.

The medical evidence in the record, said the court, showed that Petitioner suffered from chronic back pain as a result of LOD injuries, in particular those sustained during a LOD accident that occurred in 2008.

The Board of Trustees' finding that Petitioner's 2008 accident was not causally related to his disability was based on a two-year gap in Petitioner's treatment, during which time he had returned to full duty. The Appellate Division found that this decision by the Board of Trustees "was conclusory" in light of the medical evidence in the record and  "[b]oth the Medical Board and the Board of Trustees failed to refute the opinion of Petitioner's surgeon that Petitioner's condition, which necessitated surgical intervention, was the result of his LOD injuries."

While the Medical Board was free to come to any conclusion supported by medical evidence before it, the court ruled that the board could not disregard the only competent evidence on the issue before it and its failure to refute the opinion of Petitioner's surgeon that Petitioner's condition was the result of his LOD injuries required that the Board's determination be vacated.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02028.htm

Individuals serving a public entity as independent contractors are not eligible for member service credit in a New York State public retirement system

Petitioner, a member of the New York State and Local Employees' Retirement System [NYSERS], applied for retirement service credit attributed to his alleged employment by Nassau County for a period running from October 15, 1974 to December 19, 1976. His application was rejected. After a hearing, the Hearing Officer found that Petitioner had not established his entitlement to additional member service credit in NYSERS. The Comptroller adopted the Hearing Officer's findings of fact and conclusions of law and Petitioner appealed the Comptroller's determination.

The Appellate Division confirmed the Comptroller's ruling. Citing Matter of DeLuca v New York State & Local Employees' Retirement Sys., 48 AD3d 876, the Appellate Division explained that "[I]t is the Comptroller's duty to determine retirement service credits and his determination will be upheld by this Court if rational and supported by substantial evidence" and it is the claimant's burden to show that he or she is entitled to additional retirement member service credit.

According to the decision, Petitioner had testified that [1] he did work for and was issued checks by Nassau County during the relevant period;* [2] he worked under contract for the now-defunct Tri-State Planning Commission;** and [3] Nassau County was reimbursed through the Commission "for much of the money paid to him."

Although Petitioner "did not recall the exact terms of his relationship with the Commission," the Appellate Division reported that there were indications that the relationship was not one of employer and employee, e.g., [1] Social Security records indicating that Petitioner's 1974-1976 income came from self-employment and [2] Petitioner had previously characterized his work during the relevant period of time as that of an independent contractor.***

These element, said the court, demonstrated that Petitioner was not "on the payroll of a participating employer during the time in question" and constitutes substantial evidence for the Comptroller's decision denying Petitioner the additional member service credit with NYSERS he sought, notwithstanding evidence that might support a different result.

* In addition, Petitioner testified that FICA payroll taxes were not deducted from the checks he received for his service and that he was not on the County payroll.

** The Tri-State Regional Planning Commission was the conduit for a total of about $3 billion in Federal aid to counties and municipalities in New York, New Jersey and Connecticut for more than 20 years and was discontinued in 1982.

*** For additional information concerning the legal status of independent contractors go to:

https://publicpersonnellaw.blogspot.com/2016/02/distinguishing-between-employees-and.html

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01876.htm

Procedures required to be followed by an appointing authority seeking to place an employee on disability leave pursuant to Civil Service Law §72 involuntarily

The basics with respect to placing an employee on ordinary disability leave pursuant to §72 of the Civil Service Law* involuntarily, except where the appointing authority determines that the individual's continued presence at the job site constitutes a danger to the individual or to his or her coworkers or agency clients within the meaning of §72.5 of the Civil Service Law, are as follows:

1. An employee may not involuntarily be place on leave pursuant to §72.1 of the Civil Service Law by an appointing authority until employee has been first examined by a physician designated by the State Department of Civil Service or the municipal civil service commission having jurisdiction;

2. In the event the physician certifies that the individual is unable to perform the duties of his or her position and the appointing authority decides to place the individual on §72.1 leave, the employee must be notified of this decision and of his or her right to appeal the determination before being placed on such leave and,  except as permitted by Section 72.5, the appointing authority may not place the individual on leave pursuant to §72.1 leave until a final determination is made by the appointing authority; and

3. An individual placed on leave pursuant to §72.1 has the right to appeal the appointing authority's "final determination" placing him or her of such leave to the "civil service commission having jurisdiction."

In contrast, in the event the appointing authority deems the employee's continued presence at the job site to be an immediate danger to the individual or to his or her coworkers or agency clients, the employee may be placed involuntarily on disability leave immediately pursuant to §72.5 of the Civil Service Law.

Section 72, however, places “the burden of proving an employee's mental or physical unfitness on the appointing authority alleging it.” To satisfy this burden, the appointing authority must prove, by a preponderance of the evidence, that:

(i) the employee suffers from a disability unrelated to an occupational injury or disease;

(ii) that she or he is unable to competently perform her or his job duties; and

(iii) his or her inability to so perform is caused by his or her disability.

The focus of the §72 proceeding is on “the employee’s current fitness and ability to perform his or her job duties, not on his or her past condition or work performance” and “[p]ast performance is relevant only to the extent that it is probative of employee’s present condition and future conduct."

In a §72 disability proceeding, while the opinions of medical experts can inform and aid the fact finder in reaching the his or her conclusion, the fact finder is not required to accept the opinions or conclusions of any given expert, but must weigh the evidence in the record and draw his or her own inferences. Weighing the evidence and resolving issues of credibility “is primarily the province of the designated hearing officer, who has had the opportunity to see and hear the witnesses.

The testimony of an expert witness is part of the proof to be considered by the hearing officer and the hearing officer may reject an expert’s opinion if he or she finds the facts to be different from those which form the basis for the expert's opinion.

Absent the employee being immediately place on an involuntary leave pursuant to §72.5 of the Civil Service Law, the employee is continued as an "active employee on the job" until the employee is determined by the appointing authority to be disabled with respect to he or she satisfactorily performing his or her duties of the position. In the event the appointing authority makes a final determination that finds the employee to be disable and unable to satisfactorily perform his or her duties and places the individual on leave pursuant to §72, the appointing authority shall advised the employee of the appointing authority's decision and of the fact that the employee has the right to appeal the appointing authority's decision to the civil service commission having jurisdiction in accordance with §72.3 of the Civil Service Law.**

In this action, adjudicated before the New York City Office of Administrative Trials and Hearings [OATH], the employee had been placed on "pre-trial involuntary leave" pursuant to §72.5 of the Civil Service Law based upon complaints that she failed to perform assigned tasks and engaged in disruptive behavior, including spraying a chemical substance in the air, playing loud music, and singing at her work station. The employee was subsequently examined by a psychiatrist who found her unfit to perform the job due to a mental disability. The employee challenged the finding of medical expert that she was unfit to perform her duties and the need to place her on a "pre-trial involuntary leave."

As OATH Administrative Law Judge Astrid B. Gloade noted, the "complaints" recited by the appointing authority were not "pleading" and the fact that an employee committed the alleged acts "was not an element to be proven at the hearing.”  Rather the employee was diagnosed by the appointing authority's medical expert as having a "delusional disorder" that adversely affected her performance of her duties and the appointing authority was required to prove such "cause and effect."

Explaining that the medical expert's diagnosis introduced by the appointing authority was, in the opinion of the Administrative Law Judge, "unreliable," Judge Gloade observed that even if the appointing authority's evidence satisfied the first prong of its burden, the appointing authority failed to establish a causal connection between the "diagnosed delusional disorder" and employee’s inability to perform her job. In the words of the ALJ, "The fact that an employee may have a psychiatric disorder does not establish that she [or he] is unable to perform the duties of her [or his] position."

With respect to the employee's alleged failed to perform assigned tasks and engaged in alleged disruptive behavior at her work station, the ALJ said that this simply served as written notice of the facts upon which the appointing authority based its determination that the employee is not fit to perform her duties and forms the basis for having the employee medically evaluated.

Turning to the employee having being placed on "Pre-Hearing Suspension" pursuant to §72.5 of the Civil Service Law, the ALJ explained that by having placed employee on an "emergency leave prior to the trial," the appointing authority must further establish that the standard authorizing place the employee on leave under color of §72.5 was satisfied.

§72.5 permits the placement of the employee on involuntary "emergency leave" prior to a hearing only in situations where the agency has probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with agency operations.

Following a three-day hearing, ALJ Gloade found that the appointing authority  did not prove that the employee was currently unfit to perform her duties or that there was a sufficient basis to place her on "pre-trial involuntary leave." The doctor’s report and testimony, said the ALJ, failed to provide the basis for her conclusion that the employee suffers from a mental disability which precludes her from performing her duties.

Addressing the employee's placement on involuntary pre-trial leave, §72.5 allows such leave only in emergency situations where the agency has probable cause to believe the employee’s continued presence on the job represents a potential danger to persons or property or would severely interfere with operations. Here, said the ALJ, the agency did not prove either justification. Judge Gloade opined that in this instance the standard that would justify placing the employee involuntarily on §72.5 was not met, noting that placing an employee in an involuntary emergency leave status is an “extraordinary measure,” due in part to the financial hardship to the employee because there is no limit to the length of such leave.***

Judge Gloade also noted that the appointing authority failed to demonstrate that the agency had probable cause to believe that the employee was dangerous or that her presence in the workplace would “severely interfere with operations.”

Also noted was that the testimony at the hearing indicated that the staff became “very concerned” about the employee’s behavior during the two workdays preceding imposition of the involuntary leave on the employee and additional justification for her placement on leave pursuant to §72.5 were claims that the employee refused to review assigned cases, ignored her supervisor’s instructions, and kept clutter at her desk.

Such behavior, however, was ruled by the ALJ to be insufficient to establish that the employee posed a danger to herself or to others. Nor, said Judge Gloade, did the evidence demonstrate that the employee's behavior would “severely interfere” with the unit’s operations as no evidence was presented by the appointing authority that the employee's conduct during the relevant time period caused any significant disruption to the unit’s functioning sufficient to warrant that she be placed on an involuntary leave pursuant to §72.5.

In the words of the Administrative Law Judge, "In sum, [the appointing authority] lacked probable cause to believe that an emergency leave was warranted between April 26, 2018, and May 29, 2018," and thus the employee was entitled to reinstatement to her position to to the restoration of any lost salary or leave credits used during that period.

Accordingly, ALJ Gloade recommended the appointing authority's petition be dismissed and that the employee be reinstated to her position with back salary, if any was due her, and restoration of any leave accruals the employee used during the period of her pre-trial leave. 

* Employees suffering an occupational injury or disease as defined in the Workers' Compensation Law and are unable to perform the duties of their position are placed on what is commonly referred to as "Worker's Compensation Leave" pursuant to §71 of the Civil Service Law unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position. 

** The final determination of the civil service commission is binding on both the employee and the appointing authority. Either party, or both, however, may seek review of a final determination of a commission in accordance with the provisions of Article 78 of the Civil Practice Law and Rules.

*** Leave pursuant to §72 is "leave without pay" although an individual on such leave may elect use his or her "accrued leave credits" and other available leave credits until all such leave credits are exhausted in order to remain on the payroll. Further, in addition to involuntarily being placed on §72 leave by the appointing authority, when such an action is not initiated by the appointing authority an employee may request to placed on such leave, the approval of such a request to be granted at the discretion of the appointing authority.

N.B. A decision by the Second Circuit, Tooly v. Schwaller, 17‐3564‐cv, addressing  disability leave pursuant to §72 considered a defenses advanced by one of the defendants -- qualified immunity -- was handed down by the court on March 20, 2019. The text of the ruling is posted on the Internet at: http://www.ca2.uscourts.gov/decisions/isysquery/8e8a8a16-da14-4099-a4c4-311e44cc3be3/1/doc/17-3564_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8e8a8a16-da14-4099-a4c4-311e44cc3be3/1/hilite/

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-74.pdf

An employee serving a probationary period bears the burden of establishing that his or her "dismissal was due to causes unrelated to work performance and/or improperly motivated"

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation* and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

The New York State Office of Children and Family Services [OCFS] had appointed an individual [Probationer] to his position in December subject to his satisfactory completion of a one-year probationary period.** The following November OCFS terminated Probationer without notice and hearing.

Probationer then brought an action pursuant to CPLR Article 78 seeking, among other things, a court order annulling OCFS' decision to terminate his employment. OCFS filed its answer to Probationer's petition and Supreme Court ultimately granted OCFS' motion to dismiss Probationer's petition. Probationer appealed the Supreme Court's ruling.

The Appellate Division affirmed the lower court's decision, explaining "[a] probationary employee ... has no right to challenge his or her [timely] termination of [his or her probationary] employment absent a showing that the dismissal was done in bad faith or for an improper reason." Further, said the court, the probationary employee bears the burden of establishing that his or her "dismissal was due to causes unrelated to work performance and/or improperly motivated."

Further still, the record before the Appellate Division indicates Probationer violated certain policies of the OCFS facility at which he was serving and failed to document an incident when residents at the facility had engaged in prohibited activity and failed to counsel them after the incident. In addition, noted the court, Probationer was rated  unsatisfactory in four out of five categories in a performance evaluation.

The Appellate Division opined that such evidence of Probationer's unsatisfactory performance together with evidence of minor infractions committed by him, indicate that "his termination was made in good faith" and the fact that Probationer "received some favorable recommendations" does not constitute a showing of improper motivation or bad faith by OCFS in its decision to terminate Probationer's employment with it.

Concluding that Probationer "failed to tender sufficient evidence showing that his termination was due to improper reasons or done in bad faith," the Appellate Division ruled that Supreme Court correctly dismissed Probationer's petition.

* In contrast, should an appointing authority elect to terminate a probationary employee prior to the individual completing his or her minimum probationary period, the employee must be afforded “notice and hearing” in accordance with the terms of the controlling law or the relevant disciplinary procedure set out in a collective bargaining agreement. As the Court of Appeals held in York v McGuire, supra, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position.

** Typically an employee's probationary period is established at "not less than X months and not more than Y months. If no minimum probationary period is specified and the appointment is simply made subject to the satisfactory completion of the employee's probationary period the only window of opportunity for termination without initiating disciplinary action occurs at the end of the probationary period. As the Appellate Division characterized Probationer's appointment as being "subject to [satisfactory completion of] a one-year probationary period," presumably his probationary period fell within the ambit of 4 NYCRR 4.5(b)(1) by operation of law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01692.htm

Principles governing judicial review of administrative determinations pursuant to the substantial evidence standard

The Justice Center for the Protection of People with Special Needs [Justice] issued a report setting out an adverse "substantiated finding" involving Petitioner's interactions with an individual with special needs ["Service Recipient"]. Petitioner asked Justice to amend its report to "unsubstantiated" and that it be sealed. The original substantiated finding was sustained by the Justice Center's Administrative Appeals Unit and the matter was referred for a hearing before an Administrative Law Judge [ALJ].

The ALJ conducted two hearings and issued a recommended decision finding that Justice had established by a preponderance of the evidence that Petitioner was guilty of the alleged adverse conduct involving the Service Recipient. A final determination and order was issued adopting the ALJ's recommended decision. The decision denied Petitioner's request to amend and seal the report and directed that Petitioner be permanently placed on the agency's Vulnerable Person's Central Register staff exclusion list. Based on this determination, the New York State Office of Alcoholism and Substance Abuse Services [OASAS] revoked Petitioner's license.

Petitioner filed a CPLR Article 78 proceeding in Supreme Court contending the  determination was not supported by substantial evidence in the record because it was based upon controverted hearsay evidence. As a question of substantial evidence was raised by Petitioner, the proceeding was transferred to the Appellate Division.

Citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the Appellate Division noted that the Court of Appeals had recently reviewed the principles governing judicial review of administrative determinations under the substantial evidence standard and stated that, as relevant in this action, the high court had emphasized that "the substantial evidence standard is a minimal standard[,] . . . demand[ing] only that a given inference is reasonable and plausible, not necessarily the most probable. . . . [Thus,] [w]here substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently."

As to considering hearsay evidence in an administrative hearing, the Appellate Division said that "hearsay is admissible as competent evidence in an administrative proceeding, and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds" [see Matter of Watson v New York State Justice Ctr. for the Protection of People with Special Needs, 152 AD3d 1025].*

The Appellate Division opined that the hearsay allegations made by the Service Recipient were sufficiently reliable because they were corroborated by independent evidence and "was consistent with video recordings from the facility's security cameras," noting that the ALJ had also considered evidence regarding the credibility of the Service Recipient and Petitioner.**

With respect to Service Recipient's credibility, Petitioner had argued that the Service Recipient [1] had fabricated her allegations to avoid immediate discharge from the facility based on her previous misconduct and [2] submitted an affidavit that she had executed, recanting her initial allegations. 

The decision reports that the ALJ had disregarded the affidavit because it had been provided to Petitioner's counsel following an interview during which counsel was accompanied by an investigator and the Service Recipient was alone and unrepresented and, further, because the Service Recipient subsequently reconfirmed the truth of her initial allegations in an interview with Justice investigators.  

Explaining that courts "will not weigh conflicting testimony or second guess the credibility determinations of the administrative fact finder" [ see Matter of Stephen FF. v Johnson, 23 AD3d 977], the Appellate Division held that Justice's determination was supported by substantial evidence.

* At the hearing before the ALJ, Justice relied solely upon hearsay testimony to establish the allegations concerning Petitioner.

** The decision indicates that the record also contained evidence relevant to Petitioner's credibility, namely, "his admission that he had violated the facility's code of conduct by maintaining ongoing relationships with former clients after their discharge."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01689.htm

PERB has exclusive jurisdiction to resolve a claim that a public employer committed an improper practice by discontinuing a past practice

In 2008 the City of Albany [Albany] began to implement changes to the health insurance plans it offered to Albany employees. In 2010, the Albany Police Officers Union, Local 2841 [Local 2841], the bargaining representative for police officers and and certain others working for Albany, filed an improper practice charge with the Public Employment Relations Board [PERB] alleging that Albany had changed the health insurance offered to certain retirees by unilaterally discontinuing the practice of reimbursing the retirees their Medicare Part B monthly premiums.

A PERB Administrative Law Judge dismissed the improper practice charge after a hearing. Local 2841 filed an administrative appeal with PERB but PERB sustained the Administrative Law Judge's determination, holding that Local 2841 did not establish that there was a binding past practice with respect to the health insurance benefit claimed by the retirees.

Local 2841 appealed PERB's determination and the Appellate Division, opining  that PERB's determination was not supported by substantial evidence, annulled the determination and granted Local 2841's petition [see Matter of Albany Police Officers Union, Local 2841, Law Enforcement Officers Union Dist. Council 82, AFSCME, AFL-CIO v New York Pub. Empl. Relations Bd., 149 AD3d 1236 [Decision 1]. When Local 2841 asked PERB to "fulfill its statutory duty" and provide a remedy following the Appellate Division's ruling in its favor, PERB declined, taking the position that it did not have an obligation to enter a remedial order because there had been no finding that there was a violation of the Taylor Law.

Local 2841 then commenced this, its second CPLR Article 78 proceeding,  concerning its allegation that Albany had violated Civil Service Law §209-a(1)(d) when it unilaterally discontinuing the practice of reimbursing retirees for their Medicare Part B monthly premiums and asked Supreme Court to compel PERB to issue an appropriate remedial order. PERB, however, contending that Local 2841 had "failed to state a cause of action," asked  Supreme Court to dismiss Local 2841's petition. Supreme Court granted PERB's motion to dismiss the petition and Local 2841 appealed.

Citing Matter of Chenango Forks Cent. Sch. Dist. v New York State Pub. Empl. Relations Bd., 21 NY3d 255, the Appellate Division observed that a binding past practice is established where "the practice was unequivocal and was continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected bargaining unit employees that the practice would continue" and PERB has exclusive jurisdiction to resolve a claim that a public employer committed an improper practice by discontinuing a past practice.

As the PERB's decision was made after a mandated hearing, the Appellate Division explained that its review of PERB's ruling in Decision 1 was limited to determining whether PERB's decision was "supported by substantial evidence," and it had found that it was not so supported. In contrast, in this action, said the Appellate Division, Local 2841 is seeking a writ in the nature of mandamus to compel PERB to impose a remedy based on the Appellate Division's holding in Decision 1.

While mandamus may be available to a party to compel the enforcement of a clear legal right where a public official has failed to perform a duty enjoined on the official by law, the Appellate Division said that "... while a mandamus is an appropriate remedy to enforce the performance of a ministerial duty, ... it will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion."

The Appellate Division said that in Decision 1 it granted Local 2841's petition "only to the extent of finding that PERB's determination was not supported by substantial evidence." In contrast, the court stated that it had not found that Albany had violated Civil Service Law §209-a(1)(d) and thus Local 2841 has not established a clear right to mandamus relief directing PERB to issue a remedy.

In other words, the underlying issue -- did Albany engage in an improper practice -- has not been resolved. The Appellate Division then ruled that while Local 2841 had not demonstrated a clear legal right to a remedial order, Local 2841 and Albany "are entitled to a final and binding resolution of this issue" by PERB.

Accordingly, the Appellate Division remanded the matter to PERB and directed PERB to resolve "the 2010 improper practice charge in a manner that is not inconsistent with" the Appellate Division's determination in Decision 1.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01699.htm