Signing an agreement "not to sue" at the time of resignation enforceable unless found to be coerced

Signing an agreement "not to sue" at the time of resignation enforceable unless found to be coerced
Sutherland v Town of Huntington, CA2, #98-9259

In exchange for certain benefits, Patricia Sutherland submitted her resignation and signed a “release agreement.” The release agreement provided that Sutherland would not sue the Town “with respect to, or arising out of [her] employment or the termination of employment.”

Sutherland subsequently decided to sue the Town. A federal district court judge, however, granted the Town’s motion for summary judgment “[b]ecause she signed a release barring litigation of these claims.”

The U.S. Court of Appeals for the Second Circuit [NY] affirmed the lower court’s ruling. The court rejected Sutherland’s argument that her release should not bar her present action, holding that the release was enforceable as its language “unambiguously precludes the instant action in its entirety as all of [Sutherland’s present] claims relate to her treatment as an employee.” As a general rule, courts typically uphold such releases unless it can be shown that the individual was coerced into signing it.

On the issue of coercion, from time to time an appointing authority will offer an employee the opportunity to submit his or her resignation as the only alternative to being served with disciplinary charges.

New York courts have ruled that a resignation submitted in response to such a threat has not been coerced. Why? Because, say the courts, the appointing authority had a legal right, if not the duty, to file disciplinary action against the individual and threatening to exercising a legal right does not constitute coercion.

The leading case addressing this point is Rychlick v Coughlin, 63 NY2d 643. In Rychlick the Court of Appeals ruled that threatening to do what the appointing authority had a right to do -- i.e., file disciplinary charges against Rychlick -- did not constitute coercion so as to make the resignation involuntary.
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Providing volunteer with benefits deemed sufficient to trigger the Title VII protections available to employees and applicants

Providing volunteer with benefits deemed sufficient to trigger the Title VII protections available to employees and applicants
Pietras v Farmingville Fire District, 180 F.3d 468

Victoria Pietras failed the performance test required by the Farmingville Fire District. She sued, claiming the district’s test violated Title VII of the Civil Rights Act.

A federal district court judge agreed, holding that Farmingville’s physical agility test [PAT], which all probationary volunteer firefighters were required to pass in order to become full-fledged volunteer firefighters, had a disparate impact on women.

The U.S. Circuit Court of Appeals affirmed the lower court’s ruling.

According to the decision, as a probationary volunteer, Pietras was entitled to numerous firefighter benefits under state law and the by-laws of the department. These included: (1) a retirement pension, (2) life insurance, (3) death benefits, (4) disability insurance, and (5) some medical benefits.

Although not a paid employee, providing these benefits was deemed sufficient to trigger the Title VII protections available to employees and applicants for employment.

The district court directed Pietras’ reinstatement as a probationary firefighter and said Farmingville could “develop and administer a non-discriminatory PAT as a precondition to Pietras [and presumably all other applicants for volunteer firefighter] becoming a full-fledged volunteer member.” .
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Alleged CBA violation must be submitted to arbitration unless both prongs of the two-prong test governing arbitrability of disputes are satisfied

Alleged CBA violation must be submitted to arbitration unless both prongs of the two-prong test governing arbitrability of disputes are satisfied
Matter of County of Orange v Civil Serv. Employees Assn. Local 1000 AFSCME, 2010 NY Slip Op 51647(U), Decided on September 22, 2010, Judge Jeffrey A. Cohen, [Not selected for publication in the Official Reports]

CSEA Local 1000 filed a contract grievance contending that Orange County had violated the relevant collective bargaining agreement [CBA] with it replaced the armed security officer with an unarmed security officer at a County Department of Social Services ("DSS") office. The Orange County Commissioner of Personnel denied the grievance and CSEA demanded that its grievance be submitted to arbitration.

Rather than proceed to arbitration, the County filed a petition with Supreme Court it which it alleged:

1. The new security officer is not an employee of the County and is not therefore covered by the CBA.

2. Determining whether a security officer should be armed or not “is not a matter incorporated in the terms of the CBA and is ‘exclusively a matter of management discretion’".

3. The issue CSEA sought to arbitrate “is prohibited by the terms of the contract between the [County] and the independent security firm” and thus is not a “contractual CBA issue … subject to [the] grievance and arbitration procedures".

CSEA, on the other hand, argued that should the court determines that a valid contract exists, then the "scope of the matters which might be arbitrated there under" must be decided by an arbitrator.

Judge Cohen said that "Under the two-prong inquiry governing arbitrability of disputes, courts must ascertain whether the parties may arbitrate their dispute and, if so, whether they agreed to do so," citing In re New York State Correctional Officers and Police Benev. Ass'n, Inc. (New York State Dept. of Civil Service), 70 AD3d 240.”

Explaining that arbitration of the grievance is not prohibited by any statutory, constitutional or public policy rule of law, the County’s petition will not be granted based on the first prong of the analysis.

As to whether these parties agreed to arbitrate the matters contained in the Grievance, in determining whether or not a particular claim sought to be arbitrated lies within the scope of the parties' arbitration agreement, Judge Cohen said that case law holds that "the courts are not to engage in a penetrating analysis of the scope of the substantive provisions of a CBA"

Rejecting the County’s argument that its contract with the independent security firm prohibits arbitration, the court commented that while the CBA does not preclude the County from entering into other independent contracts, in doing so it cannot ignore its own contractual obligations under the CBA.*

Holding that the County “cannot absolve itself of its contractual obligations under the CBA” by entering into a subsequent agreement with another party containing incompatible terms, Judge Cohen dismissed the County’s petition and directed that the matter be submitted to arbitration.

* Judge Cohen said that “It is worth noting that the CBA was in existence long before the independent contract for security became effective. It is axiomatic that a party who enters into separate contracts with different parties must manage its contracts so that its obligations under its first contract are not impaired by its obligations under subsequent agreements.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51647.htm
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All about New York State’s Taylor Law

All about New York State’s Taylor Law
Summary of Taylor Law basics

Posted on the Internet is John M. Crotty’s Introduction to the Taylor Law.

Mr. Crotty, an attorney and arbitrator, explains the key elements of the Taylor Law and its application and administration, its history, collective bargaining under its provisions and a number of landmark PERB and court rulings interpreting its provision.

The text of this 29 page outline is posted on the Internet at:
http://www.nysdeputy.org/Archives,%20Wage%20Comparisons/Taylor%20Law%20Overview.pdf
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Concerning the duty of a public employer to defend and indemnify its employees being sued for alleged violations of an individual’s civil rights

Concerning the duty of a public employer to defend and indemnify its employees being sued for alleged violations of an individual’s civil rights
Schenectady PBA v City of Schenectady, [Not selected for publication in the Official Reports*]

Schenectady police officers were being sued in federal district court for alleged civil rights violations. Rebecca and Jessica DiSorbo were suing police officer Ronald Pederson; David Sampson was suing police officers Richard Barnett and Michael Siler.

Pederson, Barnett and Siler respectively asked the city to defend them in the federal actions and to indemnify them should they be held liable as provided by to Section 50-j(1) of the General Municipal Law [GML].

GML Section 50-j(1) provides that a municipality shall defend and indemnify a police officer if he or she is sued because of some act or omission “in the performance of his duties and within the scope of his employment.” GML Section 50-j(6) authorizes a municipality to provide for the reimbursement of “punitive damages” related to the officer’s “proper discharge of his duties and within the scope of his employment.”

The collective bargaining agreement between the PBA and the city sets out the procedural steps to be followed when a police officer submits his or her request for defense and indemnification pursuant to GML Sections 50-j(1) and 50-j(6).

The city’s corporation counsel interviewed Pederson and other witnesses and decided that “Pederson made material misrepresentations” concerning his conduct. As a result, the city rejected Pederson’s GML Section 50-j(1) application because of his “failure to cooperate in counsel’s investigation.”

The city declined to provide for the defense and indemnification of both Barnett and Siler after their personal attorney “refused to allow the officers to attend [indemnification interviews] absent an assurance ... that the attorney-client privilege would attach with the result that Counsel could not divulge the officers’ communications.” Counsel refused and the two officers failed to appear for their interview. This was deemed to be a “failure to cooperate.”

The PBA sued, seeking a court order directing the city to provide for the defense of the three officers in their respective lawsuits and to indemnify them if they are found liable for damages and attorney fees.

State Supreme Court Justice Vito C. Caruso decided that:

1. Under the terms of the Taylor Law agreement, willful misconduct within, as well as misconduct outside the scope of employment, would support the city’s rejection of a GML Section 50-j application.

2. Statements made by officers to the city’s attorney in the course of the “indemnification interview” are protected by the “attorney-client” privilege.

With respect to the applications submitted by Barnett and Siler, Justice Caruso directed the corporation counsel reconsider their applications taking into account “the distinction between defense and indemnification under GML Sections 50-j(1) and 50-j(6), and [to] set forth specific findings to support his conclusions as to both.”

The decision acknowledges that applying the “attorney-client privilege” could disqualify the corporation counsel from representing the city in a claim against both the officers and the city, but comments that any theoretical and practical difficulties are the result of the provisions of the collective bargaining agreement concerning the review of applications for defense and indemnification pursuant to GML Sections 50-j(1) and 50-j(6) negotiated by the parties.

As to Pederson, here the court found that although he appeared for the interview, the corporation counsel concluded that he had misrepresented the facts and thus “failed to cooperate.” However, the corporation counsel did not made any substantive determination as to whether Pederson was guilty of “willful misconduct ... within the scope of his employment.” Accordingly, rejecting Pederson’s application on the basis of “non-cooperation” was held to be arbitrary. The corporation counsel was directed to make a substantive determination concerning Pederson’s conduct based on his investigation and evaluation of the evidence.

* The decisions concerning the federal actions filed by Rebecca and Jessica DiSorbo, are posted on the Internet at:
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=gdig&searchTerm=ejEO.WGXa.aadi.YaYj&searchFlag=y&l1loc=FCLOW

Disciplinary probation may result in employee being summarily terminated without further hearing

Disciplinary probation may result in employee being summarily terminated without further hearing
Wilson v Bratton, 266 AD2d 140

An individual placed in “disciplinary probation” status is typically subject termination without any further hearing or due process procedures if he or she violates the term of the probation. The Wilson case illustrates this potential for being summarily dismissed.

Lynne Wilson, a New York City police officer, petitioner was placed on “dismissal probation” after she was found unfit for duty because she was intoxicated. Since joining the police force in 1980, she had accumulated a prior disciplinary record, which included the commission of an assault while on duty, two incidents of being out of residence while on sick report, and a pattern of chronic lateness.

Although she could have been terminated for the incident involving the intoxication, she was offered a one-year “dismissal probation status.” Wilson accepted and signed an agreement which provided that “[d]uring this period the Police Commissioner may impose the penalty of Dismissal at any time without further proceedings, pursuant to Administrative Code Section 14-115(d)”.

While on probation, Wilson’s commanding officer, Captain Jeffrey Mishula, filed five “command disciplines” against her.*

Wilson was warned that her that continued tardiness could lead to her dismissal. After she was late for a 10:00 a.m. appointment with the department’s Psychological Services Unit, Wilson compounded the problem by signing in as having arrived at 11:00 a.m. although she actually arrived at 11:14 a.m. As a result, Wilson was terminated without a hearing.

Wilson grieved, claiming that department had acted in bad faith because it agreed with Captain Mishula’s recommendation to terminate her without independently investigating the facts. The grievance referee sustained Wilson’s grievance. Subsequently a State Supreme Court justice confirmed the referee’s report, granted Wilson’s petition, and ordered the department to reinstate her with back pay. The Appellate Division unanimously reversed the lower court on the law and the facts, and dismissed the case. Among the problems in the decisions by the referee and the lower court pointed out by the Appellate Division were the following:

1. The court, in confirming the report, found it significant that no formal charges were served on Wilson before her summary termination;

2. The court and the referee “inexplicably ignored” Wilson’s admission that she was an hour late to the appointment, focusing instead on the disputed 14 minutes; and

3. The lower court improperly considered testimony from Wilson’s unemployment insurance hearing, which is not admissible in court proceedings, citing Labor Law Section 537[1] and Beacham v Brown, 215 AD2d 334.

The Appellate Division concluded that the lower court misread the record and noted that “[a]bsent bad faith, a municipal agency may summarily terminate a probationary employee for any reason.” Wilson acknowledged this when she signed the agreement to dismissal probation.

As to the merits of terminating an individual for lateness, the court pointed out that “[l]ateness is sufficient grounds to terminate a probationer’s employment, particularly where, as here, [Wilson’s] late arrival at [the Psychological Services Unit] was merely the last in a long series of such episodes.”

In the Wilson case the Appellate Division concluded that Wilson had agreed in writing that she could have been fired at any time without further proceedings and that having “failed to fulfill her responsibilities after being given numerous chances by [by the department], she has no basis to argue that she was terminated in bad faith.”

In contrast, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a disciplinary probation [Taylor v Cass, 505 NY2d 929]. It seems that under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months.

Taylor, while subject to this probationary period, was terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” He challenged his dismissal and won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

The lesson to be drawn from these rulings is that (1) the terms of a disciplinary probationary period must be fulfilled if the employee is to be continued in service; and (2) the employer may terminate the probationer without a hearing only if he or she fails to meet the conditions set out in the “disciplinary probation agreement.”

* Command disciplines are filed in the event an officer is late three times within a three-month period.

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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Employee seeks a hearing after being denied a promotion

Employee seeks a hearing after being denied a promotion
Wagner v NYC Transit Authority, 266 AD2d 304

The New York City Transit Authority [NYCTA] decided that Robert Wagner should not be promoted to the position of dispatcher because of his poor attendance record with the Authority. Wagner appealed and persuaded a State Supreme Court justice to direct the Authority to give him a hearing concerning the question of his promotion and make a new decision after the hearing was completed.

The Appellate Division reversed, noting that in contrast to NYCTA’s documentary evidence demonstrating that Wagner was not promoted because of his chronic absenteeism, Wagner did not present any evidence to “rebut or controvert” NYCTA’s proof.

The court said that Section 61 of the Civil Service Law gives the appointing authority “discretionary appointive power,” and a candidate for appointment or promotion does not acquire any protected property interest merely by reason of his placement on an eligible list. Accordingly, the decision of an appointing authority not to promote a particular individual “will not be disturbed as long as the determination is supported by a rational basis.” Finding that Wagner “merely alleged in conclusory fashion that the [authority’s] determination was arbitrary and improper,” the Appellate Division ruled that there was no basis for a “promotion hearing” and the Wagner’s petition should have been dismissed by the lower court.

However, Wagner also claimed that he was entitled to a hearing because NYCTA did not give him any written notice of his non-selection for the promotion required by Section 61.3 of the Civil Service Law.

Section 61.3 provides that when a candidate is selected, each candidate considered, but not selected, is to be advised of his or her “non-selection.”*

The Appellate Division said that the purpose of Section 61.3 is to provide individuals on an eligible list with information regarding their status in the civil service system so that they may make intelligent career choices. The opinion notes that neither Section 61.3 itself nor the failure of an appointing authority to comply with its provisions give an unsuccessful candidate a basis for challenging the selection decision made by the appointing authority. In contrast, a disappointed candidate may challenge his or her non-selection on the grounds that such non-selection is based on unlawful considerations by the appointing authority.

* Although Section 61.3, in pertinent part, states: “Persons on an eligible list … considered and not selected for appointment or promotion pursuant to this section shall, whenever another candidate is appointed or promoted, be given or sent written notice by the appointing authority of such non-selection …”, it does not require the appointing authority to provide the candidate with the reason or reasons why he or she was not selected for the appointment.
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Arbitrating a contract grievance

Arbitrating a contract grievance
Greenburgh 11 UFSD v Local 1532, 266 AD2d 213

The collective bargaining agreement between Local 1532 and Greenburgh 11 provided that after a teacher was late nine times for less than 20 minutes per lateness, the district would have a meeting with the employee and a union representative. A second meeting was to be held after the tenth such lateness.

Without holding any “lateness meetings” with the teachers or the Local, the district preferred Section 3020-a disciplinary charges against 15 teachers, alleging they were late on several occasions. The Local filed a contract grievance and demanded arbitration.

When Supreme Court refused to stay the contract grievance arbitration, the district appealed. The Appellate Division affirmed the lower court’s ruling, stating that “[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator.”
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Information contained in personnel record alleged to be defamatory

Information contained in personnel record alleged to be defamatory
Monroe v Schenectady County, 266 AD2d 792

Sometimes an employee will contend that information contained in his or her personnel files is derogatory. May the individual sue the agency if the information is made available to other governmental officials? Part of the Monroe case concerned the dissemination of information contained in a personnel file Monroe alleged was derogatory.

David Monroe, a Schenectady County corrections lieutenant, sued the sheriff and the county following his termination from his position of lieutenant. After a Federal court dismissed his complaint alleging a deprivation of due process under the 14th Amendment of the US Constitution, Monroe filed a lawsuit in State court.

According to the decision, Monroe was served with a written notice of discipline on July 15, 1994. He was charged with sexually harassing a Schenectady police officer and endangering “the security of the county jail by playing ping-pong and smoking.” The proposed penalty: dismissal.

Monroe, Monroe’s union representatives and department personnel met to discuss settlement of the disciplinary action. The proposed terms of the settlement: Monroe would accept a demotion to correction officer and the department would reinstatement him as a correction officer without retroactive pay or the restoration of any lost benefits. Monroe rejected the offer.

As described by the court, after he rejected the settlement, Monroe was told that if he should press for and win the disciplinary arbitration, charges alleging consorting with a prostitute, having sex with her and his being present when she purchased cocaine would be filed against him and this information would be revealed to the press. At this point Monroe decided to withdraw his disciplinary grievance and accepted the settlement offer, which he signed on January 6, 1995.

One of the issues in this rather complex litigation involved Monroe’s “ninth cause of action” which set out allegations of defamation. Monroe contended that the sheriff had defamed him when he stated that he intended “to pursue further disciplinary action against [Monroe] based on [Monroe’s] alleged connection with a prostitute” if Monroe refused to the settle the then pending disciplinary action.

According to Monroe, “the defamatory words were published by the sheriff to County officials and disseminated throughout the Sheriff’s Department by the placing of a note about the event in [Monroe’s] file.”

The Appellate Division dismissed this branch of Monroe’s action, ruling that “[i]t is obvious that the Sheriff was acting wholly within the scope of his duties (as alleged in [Monroe’s] complaint) in publishing the charges in a disciplinary action and thus was protected by an absolute privilege providing him immunity from a suit for defamation.

The court cited Mahoney v Temporary Commission of Investigation of New York, 165 AD2d 233, in support of its holding.
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Layoffs and Downsizing the State's workforce

Layoffs and Downsizing the State's workforce
Source: News media reports

On Thursday, September 23, 2010, Governor Paterson announced that in order to help solve the State's current financial crisis it will be necessary to layoff some 2,000 State employees.

Indicating that the proposed downsizing of the State's work force will begin in mid-November, the Governor said that a memorandum is being sent to the heads of State Departments and Agencies, signed jointly by Robert Megna, the State’s Budget Director and Mark Leinung, the Acting Director of State Operations, notifying them of the necessary reductions.*

The memorandum indicated that specific targets for staff reductions on an agency-by-agency basis would be distributed.

The actual number of incumbents to be laid off in a particular department or agency, however, could be reduced by its not filling vacancies resulting from retirements, resignations and other forms of “attrition” in its work force.

* The September 23, 2010 memorandum signed by Megna and Leinung, in pertinent part, states:

The ongoing economic and fiscal problems facing the State will require further cost saving actions. Despite our best efforts the State is falling short of its financial plan targets. The alternatives available to ensure we remain on a stable fiscal course are limited. Accordingly, we will need to take additional actions by the end of 2010 that will result in a reduction in the workforce by 2000 employees. You will be given the discretion to use layoffs as a part of this reduction in workforce....

Your budget examination unit will contact you with revised targets, and with further details on the process for submitting your proposed reductions.

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For information about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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