Determining on-duty status

Determining on-duty status
Cossifos v NYSERS, 275 AD2d 879

Clearly an individual who is disabled in the course of performing his or her duties may be eligible for accidental disability retirement benefits provided by a public retirement system of this state as a result of his or her being injured while on-duty. The critical issue to be determined in considering such claims, however, is whether or not the disabled employee was at work within the meaning of the statute providing for such benefits when he or she suffered the injury.

In the Cossifos case, the question to be resolved was whether an employee who was injured while eating lunch at the worksite was engaged in performing his or her duties for the purpose of eligibility for disability retirement benefits under the Retirement and Social Security Law.

Alexander Cossifos, a senior court officer, was eating his lunch in the court’s locker room when another court officer accidentally caused one of the lockers to fall on him. He applied for accidental disability retirement benefits.

The New York State Employees’ Retirement System [ERS] rejected his application for accidental disability retirement. It said that Cossifos was not working when he was injured and therefore he was ineligible for such benefits. In the words of ERS, Cossifos was on his off-duty lunch break at the time of the accident and was therefore not in service when his injuries were sustained.

Cossifos sued, only to have his appeal dismissed by the Appellate Division. The court said that there was substantial evidence in the record to support ERS’ determination. Among the facts relied upon by ERS in making its determination:

1. Cossifos’ lunch break varied from 45 minutes to two hours, at the discretion of the court.

2. Cossifos was permitted to leave the courthouse during his designated lunch period, provided that he returned to duty at the time indicated by the court.

3. There was nothing in the record to support Cossifos’ claim that he was performing his job duties during his lunch break.

4. Cossifos was not paid for the period of time he spent eating lunch and that his presence in the courthouse during his break was not required by his employment.

The Appellate Division concluded under these circumstances there was no basis to disturb ERS’ determination that Cossifos was not in service at the time of the accident and, thus he was not entitled to accidental disability retirement benefits.

The decision also notes that “[t]he fact that [Cossifos] was within the confines of the employer’s premises at the time of the injury and could have been summoned to assist in a work-related matter while he was on his lunch break does not warrant a contrary finding.”

Smith v City of Rochester, 255 AD2d 863, however, sets out one significant exception to the general rule that eating lunch is not work. Smith, decided by the Appellate Division, Fourth Department, involved a workers’ compensation claim.

Donna Smith, a city-parking monitor, challenged the denial of her claim for workers’ compensation as a result of her slipping on a wet floor while leaving a restaurant during her unpaid lunch break. The Workers’ Compensation Board ruled that Smith’s fall did not constitute an accidental injury in the course of her employment.

The Appellate Division affirmed the board’s determination, holding that lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break.

In another injury at the worksite case, Crockett v Safir, 269 AD2d 227, Appellate Division, First Department, the court rejected New York City police officer Donna Crockett’s claim that she suffered a line-of-duty injury when a mirror fell and injured her while she was brushing her teeth in the ladies’ room of a police building. The court sustained the police commissioner’s ruling that Crockett was not actually employed in discharging the orders of a superior officer at the time of the accident, as required by the statute.

Discrimination complaints and discipline

Discrimination complaints and discipline
Scroggins v Univ. of Minnesota, 8th Cir., 221 F.3d 1042

An employee files a discrimination complaint pursuant to Title VII against his or her employer. A short time later the employee is brought up on disciplinary charges, found guilty, and terminated. Is the employer guilty of retaliation against the employee in violation of Title VII? Stated another way, does the fact that an individual has filed a discrimination complaint mean that he or she may not be disciplined until the discrimination complaint is resolved?

In the Scroggins case, the U.S. Circuit Court of Appeals, Eight Circuit, decided that the fact that James Scroggins, an African-American, was terminated shortly after he filed a human rights complaint against the University of Minnesota did not mean that the University automatically violated the anti-retaliation provision in Title VII.

Scroggins was employed by the University as a custodian. He was counseled and disciplined on a number of occasions. Ultimately he was fired after being found guilty of sleeping after his break time had ended. This disciplinary action occurred just two weeks after Scroggins had filed his Title VII discrimination complaint against the University.

The Circuit Court characterized the fact that Scroggins was fired just two weeks after filing a discrimination charge as mere coincidence, rejecting his allegation that the disciplinary action against him was racially motivated and that his dismissal retaliatory. According to the court, the University had demonstrated that it had a valid, nondiscriminatory reasons for firing Scroggins.

Scroggins, on the other hand, said the court, did not offer any proof that the reasons given by the University for terminating him were pretextual.

Citing Kiel v Select Artificials, 169 F.3d 1131, the court pointed out that more than a showing that the termination occurred shortly after the individual had engaged in protected conduct, i.e., filing discrimination compliant with EEOC, is required. The individual must show that there is a factual issue of retaliation if his or her cause of action is to survive a motion for summary dismissal.

The court’s rationale: anti-discrimination statutes do not serve to insulate an employee from being disciplined for violating the employer’s work rules or disrupting the workplace.

Modifying a disciplinary procedure

Modifying a disciplinary procedure
NYC Transit Auth, v PERB, 276 AD2d 702, Motion for leave to appeal denied, 96 NY2d 713

The New York City Transit Authority case demonstrates the fact that neither an employer nor an employee organization may unilaterally modify a statutory or negotiated disciplinary procedures. Where such changes are desired, they are subject to the collective bargaining process set out in the Taylor Law.*

The case started after the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority [TA] unilaterally adopted new rules setting out revised standards and penalties with respect to convictions, moving violations, and motor vehicle accidents involving TA bus drivers.

Contending that these changes imposed rules that were more stringent than those they replaced, the Amalgamated Transit Union, Divisions 726 and 1056 and Local 100, Transport Workers Union of America [Union], representing TA employees affected by the change filed an improper practice charge with PERB.

PERB’s Administrative Law Judge [ALJ] rejected TA’s argument that the revised standards and penalties were qualifications to be satisfied before becoming a bus driver and thus not terms and conditions of employment for the purposes of the Taylor Law.

The ALJ held that the changes imposed by the TA constituted terms and conditions to be satisfied to continue employment as a bus driver rather than qualifications for employment. Accordingly, concluded the ALJ, the changes made by the TA were a mandatory subject of collective bargaining under the Taylor Law.

The bottom line: the ALJ ruled that TA’s refusal to engage in negotiations prior to before imposing the revisions violated the mandates of Section 209-a.1(d). TA appealed but PERB sustained its ALJ’s decision, noting that since the revised standards carried a disciplinary component, they were mandatory items of negotiation and thus TA should have first entered into collective negotiations with the Union concerning these changes.

PERB issued its ruling that the TA had violated Section 209-a.1(d) of the Civil Service Law Section by unilaterally implementing new disciplinary work rules and penalties. Finding that PERB’s decision was neither irrational, unreasonable, nor affected by any error of law, the Appellate Division, Second Department, sustained the ruling and dismissed the TA’s appeal.

* Section 76 of the Civil Service Law and Section 3020-a of the Education Law authorize the negotiating an alternative to the disciplinary procedures set out in those law pursuant to the Taylor Law. For information about PELP's The Discipline Book, go to: http://thedisciplinebook.blogspot.com/

Arbitrators generally permitted independent recourse to third-party sources when necessary to confirm technical information

Arbitrators generally permitted independent recourse to third-party sources when necessary to confirm technical information
Matter of Watt v Roberts, 2010 NY Slip Op 09171, decided on December 14, 2010, Appellate Division, First Department

An arbitration panel selected by the Transport Workers Union of America, Local 100 and the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority granted a 3% wage increase to employees of the Authorities and capped the formula for employees' contributions toward health insurance costs.

The award was subsequently confirmed by Supreme Court, which denied the Authorities’ Article 75 motion to vacate the award. The Appellate Division affirmed the lower court’s ruling.

The Authorities had objected to the arbitration panel's references to certain matters outside the hearing record, including the MTA's 2010 Preliminary Budget and July Financial Plan and matters reported in newspaper articles. The Appellate Division, however, ruled that this did not constitute "corruption, fraud, or misconduct in procuring the award" prejudicing the rights of either party and warranting vacatur.

The court noted that arbitrators "often are chosen because of their expertise in a particular area and are generally permitted independent recourse to third-party sources when necessary to confirm technical information." In this instance, said the Appellate Division, the arbitrators did not purport to rely on matters outside the record in setting the award, but acknowledged and referred to developments known to the parties and widely reported.

In effect, the court appears to have equated the arbitration panel’s consideration of “third-party sources” equivalent to it taking “judicial notice” in a legal action. West's Encyclopedia of American Law defines “judicial notice” as “A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09171.htm