Challenging the denial of an application for disability retirement benefits when the application is rejected by a "tie vote" by the trustees of the retirement fund

In Guidal v Trustees of the NYC Fire Department Article 1-B Fund, 275 AD2d 458, the Appellate Division demonstrated the difficult test that a claimant faces in attempting to have a court overturn a decision by the trustees of a pension fund denying his application for accidental disability retirement benefits. In Guidal's case the Trustees, by a tie vote, disapproved his application for accidental retirement benefits but approved him for ordinary disability retirement benefits. The court observed that:

"Where the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund ... denies an application for accidental disability benefits as a consequence of a tie vote, the Board’s determination can be set aside on judicial review only if it can be concluded as a matter of law that the petitioner’s disability was the natural and proximate result of a service-related injury."

In the instant CPLR Article 78 action the Supreme Court annulled the determination of the retirement system's Board of Trustees [Board] which, by a tied vote, denied Petitioner's application for accidental disability retirement benefits and remanded the matter to the Board for its further consideration.

The Board appealed and the Appellate Division unanimously reversed the lower court's ruling "on the law" and dismissed the proceeding.

Citing Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Appellate Division explained that "[b]ecause the Board of Trustee's denial of [Petitioner's]  application for accident disability retirement was the result of a tie vote, the issue for the reviewing court was whether there was any credible evidence of lack of causation, i.e., evidence that the disability was not the natural and proximate result of the 1996 service-related accident."  

Other elements considered by the Appellate Division in making its ruling was the fact that :

[1] The record included "some credible evidence of lack of causation, namely, the conservative treatment [Petitioner] received after the accident and [Petitioner's] return to full duty for approximately 14 years before seeking further treatment;" and 

[2] The fact that "neither the Medical Board nor petitioner's physician were able to explain why the purported disabling injury did not prevent [Petitioner] from returning to full time duty for 14 years without further complaint."

The State Comptroller is the sole trustee of the New York State Employees’ Retirement System. Presumably the same analysis would be applied in cases where the determination concerning approving an application for accidental or duty-related disability benefits is at issue.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06151.htm

Suspending an employee without pay while disciplinary charges are pending

  

§75 of the New York State Civil Service Law provides that an employee who has been served with disciplinary charges may be suspended without pay for up to 30 days.* If the disciplinary proceeding has not been completed by that date, the individual must be restored to the payroll.

Under certain circumstances, however, the court may decide that the appointing authority is not required to restore the suspended individual to the payroll even though the statutory 30-day period has expired. The decisions in these two cases provide examples of such situations.

First action:

The Plaintiff [Employee] in Decision 1 was served with charges of misconduct. During the §75 hearing that followed, the parties met in an effort to settle the matter.

According to the Respondent [Appointing Authority], an "oral settlement" was reached whereby Employee agreed to her resign from her position. Employee, on the other hand, said that no settlement had been reached. The fact that there was no document formalizing any settlement did not help the situation.

When the Appointing Authority failed to restore Employee to the payroll after she had been suspended without pay for 30 days, Employee sued. A New York State Supreme Court granted Employee's petition for a preliminary injunction enjoining the Appointing Authority from continuing "her suspension without pay" and the Appointing Authority appealed.

Was Employee entitled to the injunction? The Appellate Division thought not, commenting that a preliminary injunction should be granted only:

a. when the moving party has shown a likelihood of ultimate success on the merits;

b.  an irreparable and imminent injury if the injunction is withheld; and

c. that a balancing of the equities favors the moving party.

Deciding that Employee had failed to satisfy any of these elements, the Appellate Division reversed the lower Court's order granting injunctive relief.

What was the reasoning of the Appellate Division? The Court said that "if a fact finder ultimately concludes that [Employee] did resign as part of a disciplinary settlement agreement, she would not be entitled to back pay. As resolution of the question of the claimed settlement may be a determinative factor, since the issue is heavily contested, Employee has not shown a clear likelihood of success on her underlying claim.

Further, the Court decided that Employee did not demonstrate "irreparable injury." As she was only seeking monetary damages, the Court said were she to prevail on the merits her damages can be easily computed and she will be fully compensated for them.

As to the issue of the "balance of equities," the Appellate Division again noted that if Employee wins, she could, and would, be fully compensated for her loss by the Appointing Authority. If, on the other hand, should the Appointing Authority prevail after being forced to pay Employee's salary to her pending a final determination, the Court said that it is much less certain that the Appointing Authority will be able to recoup those payments.

The lesson here is that the terms and conditions of any settlement arrived at in the course of a disciplinary proceeding should be immediately reduced to writing and signed by the parties before they leave the proceeding.

Second action:

The ruling in Decision 2 concerned a related issue - restoration of an individual to the payroll if a court remands a §75 disciplinary determination for reconsideration by the appointing authority.

In this action the employee [Plaintiff] was terminated from her position after being found guilty of §75 disciplinary charges. She appealed and the Appellate Division returned the case to the Employer [Respondent] "for development of appropriate findings supporting the determination to terminate Plaintiff."

In a subsequent appeal Plaintiff contended that she was entitled to reinstatement and back salary retroactive to the date of her termination because the Appellate Division had remanded the appointing authority's original disciplinary determination "for the development of appropriate findings ...." In effect, Plaintiff, in effect, contended that this was the equivalent of a vacating of the determination.

The Appellate Division rejected Plaintiff's theory, indicating that neither the disciplinary determination nor the penalty imposed by the Respondent was  annulled as a result of its remanding the original administrative determination for further action by the appointing authority. Rather, said the Court, it had simply "withheld [its] decision" pending its receipt of the "requisite finding" by the Respondent.

Apparently satisfied that the "requisite finding" of the appointing authority supported its §75 determination and the penalty imposed, the Appellate Division sustained Plaintiff's termination.

In contrast, had the Court decided that the determination was not supported by the record or that the penalty imposed did not satisfy the Pell standard, i.e., dismissal was “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness,” [see Pell v Board of Education, 34 NY2d 222],  it probably would have directed Plaintiff's reinstatement with all, or a portion, of her back salary.

* A collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, the so-called Taylor Law, may provide for an alternative to this statutory provision for suspension without pay, in which case the provision set out in the collective bargaining will control.

The decisions are posted on the Internet at:

First action: https://www.leagle.com/decision/1997949238ad2d7111226; and  https://www.leagle.com/decision/19991078259ad2d8191315

           

Second action: https://www.leagle.com/decision/19951122213ad2d9091352

Representation rights of unions

Representation questions concerning negotiating terms and conditions of employment usually focus on which union is authorized to represent the employees in a particular collective bargaining unit. This case involved a union that claimed the provisions of a local law binding on one employer were binding on a second employer because both employers were party to a joint agreement with the union.   

The case involved the New York City Health and Hospitals Corporation and the City itself, which are separate legal entities. Both the City and the Hospitals Corporation signed a Citywide Collective Bargaining Agreement with a union.

The Hospitals Corporation decided to "privatize" the security operations at its headquarters by replacing its then security personnel with private security guards.* The union challenged the Corporation's action, contending that it was subject to New York City Local Law 35 which regulated "the privatization of services performed by City employees."

When the Hospital Corporation signed the collective bargaining agreement, did the Corporation become subject to Local Law 35? And, if so, did the services covered include all services or only certain services?

The union cited Article I of the Agreement in support of its position. Article I provided that the union was "the sole and exclusive collective bargaining representative [for employees of the City and the Corporation] on citywide matters which must be uniform for the [covered] employees."

The Appellate Division, however, did not view this provision as mandating uniformity in the terms and conditions of employment for all employees covered by the agreement.

The Court decided that Article I merely recognized the union as the sole bargaining agent for "matters which must be uniform"; it did not affect the autonomy of the Corporation with respect to its making personnel decisions affecting its own employees where city-wide uniformity was not required or implicated.

Dismissing the union's petition, the Court said that even assuming that the Corporation could elect to subject itself to specific laws or rules generally applicable to City employees, it did not do so by entering into the "Citywide Collective Bargaining Agreement."

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997495238ad2d2573306

Vacating of an arbitration award barred absent a finding that the award violated "strong public policy"

Article 75 of the Civil Practice Law and Rules set out the limited grounds available to the courts for vacating an arbitrator's award. The major exception to this is that an arbitrator's award will be vacated even if it cannot be overturned on the authority of Article 75 if a court determines that it violates strong public policy. However, the party seeking to vacate the award on the grounds that it contravene a strong public policy has a heavy burden to meet to prove its claim.

In this action the arbitrator's award was challenged on the grounds that it infringed on the School District's responsibility to maintain "educational standards" in violation of strong public policy. The Appellate Division disagreed and declined to vacate the award.

At issue was the arbitrator's decision interpreting the agreement with respect to the qualification of two candidates for the position of Faculty Manager. The Court ruled that the award did not infringe on the District's responsibility because:

a. The District conceded that both applicants for the position were qualified for the appointment; and

b. The position of Faculty Manager did not involve a classroom assignment and thus did not infringe on the District's responsibility to maintain classroom standards.

Similarly in Matter of Martin ex rel Lekkas, 86 AD2d 712, the Appellate Division held that an individual’s failure to possess a valid license otherwise required for the position is not fatal to the employee’s continuation in service if he or she is not performing duties set out in the job description for the position for which the license is otherwise required.

Lekkas, a permanent Assistant Clinical Physician was employed by the then Office of Mental Retardation and Developmental Disabilities, was never licensed to practice medicine in New York or in any State of the United States or in the Dominion of Canada. Summarily terminated from his position pursuant to §6522 of the Education Law,*Martin, representing the estate of Lekkas, initiated an Article 78 proceeding alleging that both the Federal and State Constitutions as well as §50.4 of the Civil Service Law required that Lekkas should have been given a pre-termination hearing or, alternatively, the opportunity to respond to the reasons given by the State for his discharge.

The Appellate Division, noting that the duties of an Assistant Clinical Physician were both defined and changed by administrative fiat, found that at the time of Lekkas' termination he was not practicing medicine without a license and, therefore, the court "must look to the Civil Service Law rather than the Education Law to determine his rights."

Conceding that Lekkas would not have been eligible either to take the required examination for the position or to be appointed if successful had the announcements for civil service examinations for positions as physicians in State hospitals had reflected the 1971 statutory changes, the Appellate Division, citing Civil Service Law §50.4, found that "it is equally clear that [the appointing authority] could not terminate [Lekkas] on the ground of disqualification, in the absence of fraud, more than three years after the date of such appointment".

Accordingly, the Appellate Division sustained Supreme Court's ruling annulling Lekkas' discharge and ordering his reinstatement with back pay and benefits.

* §6522 of the Education Law provided that "Only a person licensed or otherwise authorized under this article shall practice medicine or use the title physician."

The school district decision is posted on the Internet at:

https://www.leagle.com/decision/19971182237ad2d9452234

An employer that negligently or recklessly punishes an employee as a proximate result of a discrimination complaint filed by a third party may be liable under Title VII

In this appeal from a federal district court's adverse decision flowing from a student's allegation of sexual misconduct by a member of the school's faculty [Plaintiff], the U.S. Circuit Court of Appeals, 2nd Circuit, found that the Plaintiff in this action had alleged facts from which it may plausibly be inferred that the employer [University] served as a conduit for the student’s discriminatory intent and that this discriminatory intent may be imputed to the University.

The Circuit Court opined:

"(1) Where a university (a) takes an adverse employment action against an employee, (b) in response to allegations of sexual misconduct, (c) following a clearly irregular investigative or (d) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex, these circumstances support a prima facie case of sex discrimination; [and]

"(2) When contesting an inference of bias based on procedural irregularity, an employer cannot justify its abandonment of promised procedural protections by recharacterizing specific accusations in more generic terms; [and]

"(3) Where (a) a student files a complaint against a university employee, (b) the student is motivated, at least in part, by invidious discrimination, (c) the student intends that the employee suffer an adverse employment action as a result, and (d) the university negligently or recklessly punishes the employee as a proximate result of that complaint, the university may be liable under Title VII."

Accordingly the Circuit Court held that the Plaintiff’s amended complaint stated a claim for unlawful sex discrimination by the University and vacated the district court's judgment. The court then "remanded the cause to the District Court for further proceedings consistent with this opinion."

In so doing the Circuit Court also suggested that the district court “consider Plaintiff's 'cat's paw' theory" with respect to the University's liability. 

This theory, said the 2nd Circuit Court, was derived "from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law" by  Seventh U.S. Circuit Court of Appeals Judge Richard Posner in his 1990 decision in Shager v Upjohn Co., 913 F.2d 398. In this instance the 2nd Circuit Court commented that the district court "should consider [Plaintiff’s] allegations under such a theory as ... [a]t its core, a 'cat’s paw' case simply reflects a slight variation on the standard principles of vicarious liability."

The 2nd Circuit Court further noted that "[i]n the Title VII context, it is well-settled that employers may be held vicariously liable for the conduct of their agents" if a plaintiff establishes "(1) that the employer’s agent (a) was motivated by the requisite discriminatory intent, and (b) effected the relevant adverse employment action; and (2) that the agent’s conduct is imputable to the employer under general agency principles."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/995fa96b-8187-4ec9-9079-2c17cf2ae632/1/doc/18-3089_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/995fa96b-8187-4ec9-9079-2c17cf2ae632/1/hilite/

Using drone aircraft in law enforcement

In response to a number of requests for legal information on the use of drones, also known as unmanned aerial vehicles (UAVs) or unmanned aircraft systems (UAS), in law enforcement, AELE established a new web page in response to those requests at

 http://www.aele.org/drones.html.

The page contains discussion of, and links to, case law relevant to the use of drones in law enforcement and relevant federal regulations and state statutes and regulations (as currently adopted by 41 states), useful secondary material, and select sample agency policies.

Determining prevailing party damages and attorney's fees awards

Plaintiff filed a §1983 complaint against the City of New York and certain individual police officers [Defendants] for alleged deprivations of his constitutional rights.

Defendants presented Plaintiff with an offer of judgment pursuant to Federal Rule of Civil Procedure §68 in the amount of $10,001 and reasonable attorney’s fees, expenses, and costs incurred “to the date of [the] offer.” Plaintiff accepted the offer, but the Defendants were unable to agree upon the sum of attorney’s fees, expenses, and costs to be paid.

Plaintiff filed a motion with the district court for an award of reasonable attorney’s fees, expenses, and costs that included the hours Plaintiff’s solo practitioner attorney spent on clerical tasks and incurred preparing the fee application. The federal district court granted the application but reduced the requested hourly rate because of the simple, “relatively straightforward” nature of the case, and imposed a ten percent across-the-board reduction to the fee award to account for clerical tasks performed by the attorney.

The U.S Circuit Court of Appeals, Second Circuit, affirmed the district court’s decision to reduce Plaintiff’s attorney’s reasonable hourly rate in light of the simple nature of this case, as well as the district court’s decision to reduce the hours claimed through an across-the-board reduction to reflect the clerical work performed.

The Circuit Court, however, reduced and vacated the district court’s decision to award Plaintiff's attorney’s fees for the work incurred preparing the fee application because the express terms of the accepted Rule 68 offer of judgment limit the fees recoverable to those incurred “to the date of [the] offer.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/ebab1879-2677-413e-ac0d-a7c11adc7f01/3/doc/17-2823_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ebab1879-2677-413e-ac0d-a7c11adc7f01/3/hilite/

Name clearing hearings

From time to time a public employee who has been dismissed from his or her position and who is not entitled to a pre-termination hearing as a matter of law or pursuant to the terms of a collective bargaining agreement demands a "name-clearing hearing." The instant case involves such a situation.

The Petitioner was terminated from his position with the New York City School District [School District] following allegations he was involved in incidents of  "fiscal improprieties, gross mismanagement and outright theft." After a "confidential draft" report concerning the matter by the "Auditor General" was given to, and reported by, a newspaper, Petitioner demanded a "name-clearing hearing."

On its face, this satisfied the two basic requirements courts consider in determining if a name-clearing hearing is required:

(1)  allegations that if untrue, tend to defame an individual; and

(2) publication or dissemination of such information by the employer to the public.

Finding that in the Petitioner's case a name-clearing hearing was warranted, a New York State Supreme Court judge summarized the rationale underlying  a public officer's or public employee's right to a name-clearing hearing as follows:

"A government employee is deprived of a liberty interest where his or her employment has been terminated based on allegations which place, at stake, his name, reputation, honor and integrity."

The Court ruled that Petitioner was entitled to a name-clearing hearing at which he could be represented by an attorney if he wished and was to be "given an opportunity to examine all reports, face his accusers and, if possible, refute the charges."

The decision also notes that an employee is not required to establish the falsity of the charges in order to be entitled to a name-clearing hearing because that is the function of the hearing itself. The School District had contended that in order to be entitled to a name-clearing hearing, the individual had to first demonstrate that the charges alleged by the employer were untrue.

Courts, however, have ruled that even though an individual is successful in "clearing" his name, that, standing alone, does not automatically result in the Petitioner's reinstatement to his former position.

The decision is posted on the Internet at:

https://www.leagle.com/decision/19961175167misc2d100811018

Some reasons why motions to dismiss an Article 78 action relying on the doctrines of res judicata, collateral estoppel or an alleged "failure to exhaust administrative remedies" may be rejected by a court

Among the issues addressed by the Appellate Division in its review of an appeal from an Article 78 decision by Supreme Court was the authority of a school superintendent to suspend a high school principal.

Noting that Education Law §2566(6) grants a superintendent limited authority "to suspend a ... principal ... until the next regular meeting of the board, when all facts relating to the case shall be submitted to the board for its consideration and action,"  the Principal alleged that the City School District's Board of Education [Board] never ratified or approved her suspension at "the next regular meeting of the board," and therefore there was no authority for her continued suspension.

In rebuttal, the Board contended that the issue was considered in the course of an earlier arbitration* and thus judicial review of the Principal's claim was barred by the doctrines of res judicata and collateral estoppel.** 

The Appellate Division disagreed with the Board's argument, explaining that the issues raised in this litigation by the Principal were not identical to those raised during the prior arbitration. Accordingly, the court ruled that neither doctrine served as a bar to judicial review of the issue under the circumstances.

Another argument advanced by the Board was that Principal had failed to exhaust her administrative remedies prior to commencing this Article 78 action. Principal, however, argued that "exhaustion of administrative remedies" was not a condition precedent to initiating litigation in this instance.

Noting that the Principal had, in fact, filed a "contract grievance" based on an alleged violation of the relevant collective bargaining agreement, the Appellate Division opined that this was of no moment because "[t]he issues presented and the remedies sought in each forum were separate and distinct." Thus, explained the court, exhaustion of administrative remedies provided by a collective bargaining agreement is not necessary "where, as here, the [Principal] alleges violations of the Education Law, not violations of the agreement."

Further, said the court, although Education Law §310 provides, in relevant part, that any party aggrieved by an official act or decision of school authorities "may appeal by petition to the [C]ommissioner of [E]ducation," the Commissioner exercises primary jurisdiction only where the matter involves an issue requiring his or her specialized knowledge and expertise. Here, however, the Appellate Division concluded that Principal's contention with respect to §2566 of the Education Law "requires no more than the interpretation and application of the plain language of that statute for which no deference to the [Commissioner of Education] is required."

Finally, the Appellate Division found that the Article 78 petition had not been rendered moot as the result of a subsequent investigation into additional alleged improprieties by the Principal as the Board had neither alleged nor submitted evidence that the Board, in contrast to the Superintendent, had suspended the Principal in compliance with Education Law §2566(6) in connection with such new allegations.

The Appellate Division reversed the Supreme Court's judgment [1] "insofar as appealed from," [2] reinstated Principals' petition, and [3] gave the Board "20 days from service of the order of this Court with notice of entry to serve and file an answer" to Principal's Article 78 action.

* The arbitration resolved whether the placement of an employee on paid administrative leave pending an investigation into allegations of misconduct constituted a violation of Article 4A of the controlling collective bargaining agreement. Article 4A provided that "no administrator shall be disciplined, reprimanded, reduced in rank or compensation or deprived of any professional advantage without cause."

** The doctrines of res judicata and collateral estoppel, sometimes referred to as "issue preclusion,"  bar the relitigation of a "cause of action" once there has been judicial or quasi-judicial decision concerning the issue on its merits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05895.htm

New York State Governor Andrew M. Cuomo signs legislation enacting sweeping new workplace harassment protections

On August 12, 2019Governor Andrew M. Cuomo signed legislation (S.6577/A.8421) to enact sweeping new workplace harassment protections, fulfilling a key component of Governor Cuomo's 2019 Women's Justice Agenda by:

1. Eliminating restriction that harassment be "severe or pervasive" in order for it to be legally actionable;

2. Mandates that all employment contract non-disclosure agreements [NDAs] include language allowing employees to file a complaint of harassment or discrimination; and

3. Extends statute of limitations for employment sexual harassment claims filed from one year to three years.

To further protect workers and hold abusers accountable, this legislation:

Lowers the high bar set for employees to hold employers accountable for sexual harassment by amending under the New York Human Rights Law to make clear that conduct need not be  "severe or pervasive" to constitute actionable conduct;

Protects employees' rights to pursue complaints by mandating that all non-disclosure agreements in employment contracts include language stating that employees may still file a complaint of harassment or discrimination with a state or local agency and testify or participate in a government investigation;

Extends the statute of limitations for employment sexual harassment claims filed with the Division of Human Rights from one year to three years;

Requires employers to provide their employees with notice about the employer's sexual harassment prevention policy in English as well as the employee's primary language;

Expands the coverage of the Human Rights Law to all employers in the state;

Extends protections against all forms of discrimination in the workplace to all contractors, subcontractors, vendors, consultants, or others providing services; and against all forms of discriminatory harassment to domestic workers;

Requires courts to interpret the Human Rights Law liberally regardless of the federal rollback of rights;

Prohibits mandatory arbitration to resolve cases of discrimination and harassment in the workplace;

Updates the power of the Attorney General to enforce the Human Rights Law; and

Requires a study on how best to build on recent sexual harassment prevention laws to combat all types of discrimination in the workplace and a review of sexual harassment policies every four years.

A copy of the text of this measure is available from NYPPL as an attachment to an e-mail. Send your request to publications@nycap.rr.com with "workplace harassment protections" as the subject.