Disciplinary action for failure to maintain height and weight requirements to continue in public employment lawful

Disciplinary action for failure to maintain height and weight requirements to continue in public employment lawful
Francis v. City of Meriden, CA2, 129 F.3d 281, Cert. denied, 526 U.S. 1018

Does disciplining law enforcement personnel and firefighters who fail to meet certain “weight/height” guidelines constitute unlawful discrimination under Americans with Disabilities Act of 1990 [ADA] or the Rehabilitation Act of 1973 [RHA]? In the Francis case, the U.S. Circuit Court of Appeals, Second Circuit [New York], ruled that such discipline is not discriminatory.

City of Meriden, Connecticut, firefighter John A. Francis had been suspended for one day because he exceeded the Meriden fire department’s weight/fitness guidelines for firefighters set out in a collective bargaining agreement. Under the terms of the agreement, a firefighter whose weight exceeded the limits had to demonstrate his or her fitness by passing either a body fat test or a physical fitness test. If the firefighter was unable to do so, he or she could be disciplined and subject to disciplinary penalties up to and including termination.

Obesity, except in cases where the obesity relates to a physiological disorder, is not a “physical impairment” within the meaning of the statutes. For the purposes of ADA and RHA, an “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within “normal” range and are not the result of a physiological disorder. [29 C.F.R. Section 1630.2(h)]

To state a claim under the ADA or the RHA, individual must either have an impairment or be able to show that he or she was “regarded as” having such an impairment.” An employer who disciplines an employee for not meeting certain weight guidelines has not unlawfully discriminated against the employee unless it can be shown that either (1) the weight condition is the symptom of a physiological disorder, or (2) that the employer’s disciplinary action was based on the perception that the employee is obese as a result of a physiological disorder (“morbidly obese.”) [See Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997)]

According to the decision, “a plaintiff ... must allege that the employer believed, however erroneously, that the individual suffered from an “impairment” that, if it truly existed, would be covered under the statutes and that the employer discriminated against the plaintiff on that basis.” The Court said Francis’ action had to be dismissed because “to hold otherwise would open up the ‘regarded as’ prongs of the ADA and the RHA to a range of physical conditions -- height, strength, dexterity, and left-handedness, for example -- not meant to be covered by the Acts.”

The Court said that employers subject to ADA and the Rehabilitation Act may not discriminate against a qualified individual with a disability with respect to the “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

A “physical impairment” under the ADA is defined by regulations issued by the Equal Employment Opportunity Commission (“EEOC”) as “[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, ... cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.” 29 C.F.R. Section 1630.2(h)(1).1. For the purposes of HRA, the same definition is applied [45 C.F.R. Section 84.3(j)(2)(i).2].

The text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/heightweight-requirements-in-public.html

Newspaper ordered to disclose the source of alleged inaccurate information it published to the individual suing for alleged defamation

Newspaper ordered to disclose the source of alleged inaccurate information it published to the individual suing for alleged defamation
Matter of Pakter v New York City Dept .of Educ., 2010 NY Slip Op 32451(U, August 20, 2010, Supreme Court, New York County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]

David Pakter, a school teacher employed by the New York City Department of Education [DOE], was charged with misconduct and removed from his classroom teaching duties and assigned to one of the DOE’S reassignment centers, also known as the “rubber rooms.’’

On March 21, 2010, the New York Post published an article titled “Bored of Ed. in Rubber Rooms.” A sidebar to this article featuring “notable rubber room residents” included Pakter and stated that he was charged with sexual misconduct. Pakter, however, had not been charged with sexual misconduct and the Post subsequently ran a retraction.

Pakter, believing himself to have been defamed and intending to bring a lawsuit against the person or persons who provided the Post with the inaccurate information, asked the Post and DOE to identify the source of the incorrect statement.

When his request was denied, Pakter filed a petition in Supreme Court seeking a court order to compel the disclosure the name or names of the person or persons involved with providing the information and any documentation that he had been charged with sexual misconduct. He also asked for a court order compelling the Post and DOE to preserve all “notes, emails, and electronically stored information” concerning the event.

Judge Kern ruled that Pakter was entitled to “pre-action disclosure of information” as to the identity of the source or sources who provided the Post with the statement as he had made a “strong showing that a cause of action exists” for a cause of action for defamation alleging a false statement, published without privilege or authorization to a third party.

Further, said the court, such pre-action discovery is permitted in cases, such as here, where an individual having a valid claim for defamation needs "to identify the unnamed source or sources who provided defamatory information to a newspaper in order to bring an action against them."

The Post was ordered to answer interrogatories limited to the issue of the name(s) of the source or sources who provided the Post with the statement that Pakter had been charged with sexual misconduct "as reported in the article and sidebar to the article entitled 'Bored of Ed. in Rubber Rooms'" and, in addition, both the Post and DOE were directed “to preserve any documents, reporter’s notes, emails, and electronically stored information related to the statement at issue.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32451.pdf

N.B. Now pending before the Court of Appeals is Geraci v Probst [see 61 AD3d 717]. This case concerns whether the original publisher of a libelous letter could be held responsible for its subsequent publication in a newspaper. The Appellate Division's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_02971.htm
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Employee’s reporting feeling “tired, lethargic, fatigue-ish and ill” insufficient notice to trigger the protections of the FMLA

Employee’s reporting feeling “tired, lethargic, fatigue-ish and ill” insufficient notice to trigger the protections of the FMLA
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Jordan To was employed by US Bank as a Senior Research Clerk.

While employed, To joined the Minnesota National Guard. As ordered, To attended Guard training at Fort Benning for approximately three months. He kept his employer informed of his expected return to work.

When his return date came, To called his supervisor and informed him that because he was feeling tired, lethargic fatigue-ish he needed a few days off to recuperate and would not be back to work as previously planned. To was told that, to be excused, he would need a doctor's note, which To provided. To provided a doctor's note, which excused his continuing absence from work citing only "illness."

As his revised return days approached, To would call his supervisor requesting additional leave because "he was still not feeling well." A second doctor's sought to excuse his continuing absence due to "illness." The pattern continued of more calls to work asking for additional leave because he "was still feeling the same symptoms."

Eventually, To remained absent from work but stopped calling his supervisor as required by US Bank policy. US Bank fired To.

To sued, alleging violation of the FMLA. US Bank moved for summary judgment.
In awarding summary judgment to US Bank, the court found that To had failed to provide adequate notice of his need for FMLA leave.

In the Sixth Circuit, whether an employee provided adequate notice of the need for leave is based on whether the information imparted to the employer is sufficient to reasonably apprise the employer that the need for leave is due to a serious health condition. An employee must explain their need for leave in a way that makes it reasonably plaint that the employee's health condition is serious and that this is why the employee needs to be absent.

By informing his employer that he "was felling ill, tired, lethargic, fatigue-ish... and that he needed a few days to recuperate," To failed to reasonably apprise US Bank that his need for leave was due to an FMLA-covered serious health condition. As additional evidence of To's failure to provide adequate notice, the Court also cited the doctor's slips, which simply referenced "illness" as the reason he needed to be absent from work.

The Court also found that US Bank had the right to terminate To for violating company policy requiring him to notify his supervisor, not someone else, of his need for leave. Under US Bank policy, an employee who is absent for two consecutive work days and who fails to report those absences to their immediate supervisor is considered to have abandoned their job. That, the Court found, is what happened in this case.

Absent unusual circumstances, the FMLA allows an employer to enforce their usual and customary leave policies and procedures. 29 CFR 825.302(d). The Court found not "unusual circumstances" that prevented To from complying with US Bank's direct reporting requirement.

Mr. Bosland Comments: To perfect the right to job-protected FMLA leave, employees do not have to invoke the FMLA by name (although they may). Employee's must, however, articulate facts that arguably fit one or more FMLA-covered serious health conditions. Claiming that you are "ill," or "sick," or "fatigued" simply fails that test. Courts have uniformly held that such generic language fails to reasonably alert the employer that the need for leave is due to a "serious" health condition that might be FMLA-qualifying.

Even if To had provided adequate notice of the need for leave, US Bank would have been within its right to deny FMLA leave coverage and terminate him for violating the company's leave reporting policies and procedures. To perfect the right to FMLA leave, employees must provide adequate notice of the need for leave, and abide by their company's leave reporting policies. An employee might be excused both from providing adequate notice and complying with the employer's leave reporting policies if they were unable to do so. That was not the case with To.

To v. US Bancorp, No. 08-5979 (JRT/JJK), (D. Minn. Sept. 7, 2010)
http://www.leagle.com/unsecure/page.htm?shortname=infdco20100907a83

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Why lay people are sometimes confused by administrative law

Why lay people are sometimes confused by administrative law
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/

Heck, why lawyers are sometimes confused by administrative law. The following is from Byrum v. Office of Personnel Management, No. 2009-3264 (Fed. Cir. Sept. 9, 2010) (available here), slip op. at 2:

"Those uninitiated in the ways of government might suppose a conclusion regarding whether a daughter was or was not also her mother’s spouse,* even on these scant facts, to be somewhat strange, and might even suppose that a correct conclusion regarding that proposition is sufficiently self-evident not to have required two years of administrative consideration. One might even think there must have been something else at issue. In fact, there was. It falls to us to explain to the Justice Department, the MSPB, and OPM why it is now necessary, after all the administrative proceedings that preceded, for this court to vacate and remand the matter so OPM can start over, addressing the issues Ms. Byrum’s claim actually presented."

Thanks to How Appealing for the pointer.

Edward M. “Ted” McClure

* NYPPL notes that the court described the genesis of this case as follows: "This case involves determining the rightful claimant to certain death benefits attributable to the service of a deceased federal employee. The employee’s spouse, who ordinarily would be entitled to the benefits, has been held civilly responsible for the employee’s death. Ordered in the civil action to assign the benefits to Stephanie Byrum, daughter of the deceased employee and petitioner in this appeal, the employee’s spouse subsequently executed the ordered assignment. Petitioner Byrum made claim to the death benefits." As subsequently noted by the court in its 20 page ruling, "Ms. Byrum is claiming the death benefits at issue based not on Ms. Byrum’s relationship to her mother, but on her status as the court-designated assignee of her mother’s spouse...."
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Through investigation of allegations of misconduct prior to initiating disciplinary action critical

Through investigation of allegations of misconduct prior to initiating disciplinary action critical
Michaelis v State, New York State Supreme Court, [Not selected for publication in the Official Reports, affd., 258 A.D.2d 693]

The Michaelis case illustrates the importance of an employer thoroughly investigating allegations before serving disciplinary charges against an employee.

A jury awarded back salary and damages to Kenneth Michaelis for “emotional suffering” because it decided that the employer had not “thoroughly investigated” before disciplining him.

Michaelis was one of two white deputy superintendents employed at a New York State Department of Corrections facility who were demoted for allegedly subjecting an African-American deputy superintendent to “ridicule or racially insensitive comments.”

Michaelis was charged with placing a “jail bird” figure on the door of an African-American co-worker Frank Irvin. Irvin viewed Michaelis’ action “racist” and submitted a complaint to the Department.

The Appellate Division had allowed Michaelis’ lawsuit against the New York State Department of Correctional Services to heard by a jury when it sustained a lower court’s refusal to dismiss his complaint [see 244 A.D.2d 636]. Michaelis’ suit alleged that the Department had imposed a more severe disciplinary penalty on him than it had on others who committed similar acts or omissions.

Michaels contended this harsher treatment was because of his race, and that this violated the State’s Human Rights Law. He maintained that he had been subjected to “reverse discrimination” when he was disciplined because of what he contended was “harmless prank.”

The jury decided that Michaelis had been disciplined by the Department without it first having “thoroughly investigated allegations of racism” directed against him. The award: $238,000 as back wages plus $90,000 for “emotional suffering” was sustained by the Appellate Division.

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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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Retiree health insurance benefits

Retiree health insurance benefits
Aeneas McDonald PBA v City of Geneva, App. Div., 245 A.D.2d 1042, Affirmed, 92 N.Y.2d 326

The elimination or modification of a public retiree’s health insurance coverage by a former employer has been the subject of a number of recent litigations. The latest rulings suggest that the resolution of the issue will turn on whether or not the retirees have a contractual right to such benefits.

For instance, in the Della Rocco v. City of Schenectady and Andriano v. City of Schenectady cases, decided August 28, 1997, New York State Supreme Court Justice Robert E. Lynch wrote that City of Schenectady police and fire department retirees were entitled to fully paid health insurance comparable to that in effect at the time of each retiree’s retirement because the benefits had been negotiated and set out in a Taylor Law agreement. Justice Lynch ruled that it was not relevant that the particular Taylor Law agreement under which the individual retired was no longer operative.

The Appellate Division recently applied the same reasoning in a suit filed by the Aeneas McDonald Police Benevolent Association, Inc., whose members include all current and retired members of the Geneva Police Department. The PBA sued to annul the City’s decision to unilaterally change the health insurance plan it provided for its retired police officers.

In a split decision, the Appellate Division ruled that the City of Geneva could change the health insurance it provided its retired police officers because the retirees’ health insurance coverage benefits were not protected by the terms of a collective bargaining agreement, either currently operative or expired.

The background: In 1972 the City adopted a resolution, Resolution 33, providing for the payment of health insurance benefits to retired City employees. The City simultaneously discontinued its membership in the State’s Employees’ Health Plan, electing to provide coverage through the Genesee Valley Medical Health Care Plan. Later the City replaced the Genesee Plan with the Blue Million Health Plan.

The City told its retirees that they would be covered by the Blue Million Health Plan until December 31, 1996, and that effective January 1, 1997 their coverage would be changed to the Blue Choice Extended Plan. The union sued. What proved to be critical in determining the rights of Geneva’s retired police officers was the fact that the City’s retirees’ benefits were being provided pursuant to a resolution adopted by the City rather than under the terms of a collective bargaining agreement.

Although New York State Supreme Court Justice Harvey held that Geneva’s decision to change the health insurance benefits of retirees violated the parties’ past practice of providing a certain level of benefits to retirees, the Appellate Division ruled that this was incorrect.

The Appellate Division pointed out that none of the previous collective bargaining agreements between the City and the bargaining units that represent active police officers addressed the issue of health insurance benefits for retired police officers. Consequently, said the Court, the union’s retired members “are not now nor have they at any time in the past been beneficiaries of a negotiated labor agreement that provides health insurance benefits during the period of their retirement.”

In contrast to the situation in the Schenectady case, the Court concluded in the Geneva case that (1) the retired union members never had any contractual rights with respect to health insurance benefits during retirement and (2) Resolution No. 33 did not give the retirees any vested rights to any particular health insurance benefits during retirement. In other words, unless the provision is deemed a “contractual” obligation, a legislative body may amend, or repeal, a law, rule, regulation, ordinance or resolution changing health insurance benefits for retirees. In addition, the Appellate Division said that the City was not required to negotiate its unilateral change in the health insurance benefits it provided its retirees and dismissed the union’s petition.

What about the State Constitution’s prohibition against “diminishing or impairing” a retirement benefit? The simple answer is that health insurance benefits are not “retirement benefits” within the meaning of the State’s Constitution. Unless there is some “contractual right” to health insurance benefits in retirement, the employer may unilaterally change the plan, contribution rates or other elements of a retiree’s health insurance.

The leading case involving this issue is Lippman v Sewanhaka Central High School District, 66 NY2d 313. The Court of Appeals said that a school board could change the rates of its employer contributions for retiree health insurance premiums that had been adopted pursuant to an earlier school board resolution where “the retirees had no contractual right” to the continuation of those contributions.

Those involved in the public schools or BOCES should note that school retirees have special rights. Under temporary legislation, state law requires school districts and BOCES to provide their respective retirees with the same health insurance benefits that they provide for their active employees [Chapter 80 of the Laws of 1997 extended Chapter 729 of the Laws of 1994 for one additional year]. Retirees of other municipal employers are seeking similar legislative protection against changes in their health insurance coverage by their former employers.

The text of the decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/10/retiree-health-insurance-benefits.html
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Retaliating against employees for political activity

Retaliating against employees for political activity
Richardson v Saratoga Springs, App Div, 246 A.D.2d 900

Scott Richardson, one of two “city electricians” employed by the Saratoga Springs Department of Public Works, supported his brother-in-law in a political race against the City’s incumbent Commissioner of Public Works. After the incumbent won, Richardson sued, alleging that the City had retaliated against him for his political activities by:

1. Transferring some of his duties to a co-worker, Vincent Arpey; and

2. Discontinuing his de facto status as supervisor of the entire electrical crew.

He cited Section 107 of the Civil Service Law, which provides, in pertinent part, that political opinions or affiliations may not be a consideration in the “appointment or selection to or removal from an office or employment” (or in the discharge or promotion or reduction, or in any manner change in the official rank or compensation) of an individual whose position is subject to the Civil Service Law.”

The Appellate Division agreed, holding a jury trial was needed to determine whether Saratoga Springs violated this section of the law when it made a personnel decision that was “affected or influenced by” an employee’s political opinion or affiliation. “[A] reasonable factfinder could conclude that [Richardson] was discriminated against because of his political activities outside of working hours.”

The Court said discrimination could explain why Richardson’s was denied “a promotion and concomitant salary increase -- ‘for constitutionally impermissible reasons,’ namely, because of his off-duty political activities.” The fact that an independent consultant actually recommended the reclassification was, according to the ruling, of little significance “where, as here, it can be inferred that those actions were the direct consequence of the changes in the electricians’ work duties “affected or influenced by” the Commissioner.”
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School district ordered to reimburse Medicare-eligible retirees enrolled in Medicare the cost of Medicare premiums

School district ordered to reimburse Medicare-eligible retirees enrolled in Medicare the cost of Medicare premiums
Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., Supreme Court, Broome County, 2010 NY Slip Op 20360, Decided on September 3, 2010, Supreme Court, Broome County, Judge Philip R. Rumsey

The Chenango Forks Central School District discontinued reimbursing its Medicare-eligible retirees and their dependents participating in its health insurance plan the premiums they were required to pay for participating in Medicare.

The District’s Health Insurance Plan was underwritten by “Blue Cross/Blue Shield” [Plan] that did not require that eligible individuals enroll in Medicare. However, the Plan would not cover services that would be provided to a Medicare recipient by Medicare even if an eligible individual or his or her covered dependent failed to enroll in Part B.*

Theodora Q. Bryant and a number of other school district retirees or the survivors of such retirees brought an Article 78 action in an effort to annul the School District’s failure to reimburse them for the Medicare premiums that were required to pay for their Medicare coverage. Bryant contended that the District’s action violated the statutory moratorium against reducing the health insurance benefits of school district retirees, or the contributions made to obtain such benefits, in the absence of a similar decrease in benefits or contributions for active employees.**

All petitioners are 65 years of age, or older, and are eligible to receive Medicare benefits, including Part B, which provides coverage for physician and outpatient services. A monthly premium for Part B coverage is deducted from the Social Security benefits payable to an enrolled individual. In 1987 and 1988, in accordance with a collective bargaining agreement, respondent provided health insurance to teachers and eligible retirees through NYSHIP, New York’s health insurance plan for State officers and employees and the officers and employees of political subdivisions of the State electing to become “participating employers.”

NYSHIP required Medicare-eligible individuals to enroll in Medicare as NYSHIP but reimburse the Medicare premiums that they were required to pay in accordance with the provisions of Civil Service Law §167-a.

In 1988, the collective bargaining agreement between the District and the Chenango Forks Teachers Association replaced NYSHIP with a Blue Cross/Blue Shield Plan (Plan), which does not require that eligible individuals enroll in Medicare. However the Plan did not provide benefits services that would be provided to a Medicare recipient in the event a Medicare-eligible participant failed to enroll in Medicare. Although the new collective bargaining agreement was silent with respect to the District reimbursing Medicare premiums to the Medicare-eligible participants, the District reimbursed such retirees for their Medicare premiums continuously since at least 1980.

The District discontinued making such reimbursements effective July 1, 2003.

Bryant, however, contended that the Moratorium precluded any diminution in health insurance benefits provided to retirees or their dependents, or contributions made toward the payment of retiree health benefits, "unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board from the corresponding group of active employees for such retirees, [emphasis Judge Rumsey's]. Judge Rumsey agreed and, annulling the District’s discontinuing it practice of reimbursing Medicare-eligible retirees their Medicare premiums and directed it to pay Bryant and her co-litigants “the amounts of such premiums that would have been so reimbursed, in the absence of the challenged determination.”

* The State’s NYSHIP health insurance plan incorporates a similar limitation in that its health insurance plan does not pay for those services that would be otherwise paid by Medicare on behalf of a Medicare-eligible individual thereby requiring such an individual and his or her dependents to enroll in Medicare and pay the premiums required for such Medicare coverages in order to have such coverages.

** Initially enacted in 2003 (see Chapter 48 of the Laws of 2003), the prohibition was periodically extended and made permanent in 2009 [Chapter 504, Laws of 2009, §14(b)].

The Byrant decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20360.htm

For additional information concerning the issues concerning reimbursing Medicare-eligible retirees for their Medicare premiums, please go to:
http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html
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Appealing an administrative determination by the State Department of Education

Appealing an administrative determination by the State Department of Education
Appeal of Dean F. Goewey, Decisions of the Commissioner of Education, Decision #16,135

The State Education Department’s Office of School Personnel Review and Accountability denied Dean F. Goewey’s request for a change in venue with respect to a hearing to be held pursuant to Part 83* of the Commissioner’s Regulations [8 NYCRR 83]. Goewey filed an appeal with the Commissioner of Education in an effort to overturn the Department’s decision not to change the venue of the hearing.

The Commissioner dismissed Goewey’s appeal, explaining that a §310 appeal is not the appropriate forum to review either the determination of the hearing officer or the determinations of OSPRA staff. The Commissioner also noted that he had appointed the hearing officer “to conduct a Part 83 moral character hearing” on his behalf."

The Commissioner said that the proper forum to challenge such administrative actions is via “a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.”

As to the administrative proceeding itself, the Commissioner said that Goewey could appeal the administrative determination as provided by §83.5 of the Commissioner’s Regulations [8 NYCRR 83.5] within 30 days after receipt of notification of the findings and recommendations of the hearing panel.**

* Part 83 of the Commissioner's Regulations addresses “Determination of Good Moral Character” and, as a first step, requires that any information “indicating that an individual holding a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character, shall be referred by the chief school administrator having knowledge thereof to the professional conduct officer of the [Education] department.”

** 8 NYCRR 83.5 (a) addresses, in pertinent part, the right to appeal. It provides that “The certified individual or applicant may commence an appeal of the findings and recommendations of the hearing officer by filing the original appeal papers with the commissioner, with proof of service by regular mail upon the executive director of the Office of Teaching Initiatives. The executive director of the Office of Teaching Initiatives may file a written response with the commissioner within 30 days of being served with such appeal papers, with proof of service by regular mail on the certified individual or applicant or the attorney of record of such certified individual or applicant.”

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16135.htm
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Exhausting the contract grievance procedure is not always a condition precident to challenging a disciplinary action

Exhausting the contract grievance procedure is not always a condition precident to challenging a disciplinary action
Mancuso v Crew, NYS Supreme Court, [Not selected for publication in the Official Reports]

If a collective bargaining agreement contains a “contract grievance procedure,” must an employee who has been disciplined exhaust the contract grievance procedure before he or she may challenge the disciplinary action pursuant to Section 75 of the Civil Service Law?

As the Mancuso case demonstrates, the answer can be no, but only if the collective bargaining agreement does not provide a contract disciplinary procedure in place of Section 75.

“(A) union is free to bargain away its members’ statutory rights when that bargain is expressly stated in the agreement,” a state Supreme Court Justice ruled in the Mancuso case. But the mere existence of a grievance procedure is insufficient to prove that the union had negotiated an alternative to Section 75. When the employer took disciplinary action against employees, it could not avoid challenges under Section 75, even though none of the employees involved had used the grievance procedure past the second step.

Nicholas Mancuso sued the New York City Board of Education on behalf of 20 School Safety Officers whom the board had suspended without pay, or terminated, for such misconduct as a drug-related arrest, sexual misconduct or excessive absenteeism. The employees all held positions in the non-competitive class. There was no question that the employees were protected by Section 75 since all had served at least five continuous years in nonpolicy-making positions. [See Civil Service Law Section 75.1(c)]

Mancuso claimed the school board violated the due process rights of the employees in the disciplinary process. He contended that the employees had been suspended more than 30 days -- the maximum period permitted by Section 75 pending a disciplinary hearing and determination of the charges. [Section 75.3] Mancuso argued that the employees were entitled to back pay for any period of suspension in excess of this 30-day statutory period to the extent that the employees themselves did not cause any delay in the disciplinary proceeding.

The Board of Education, on the other hand, argued that Mancuso’s petition had to be dismissed because “10 of the 20 named petitioners utilized the grievance procedure provided by their collective bargaining agreement [CBA] to Step I or Step II, but did not complete Step III or Step IV, and thus have failed to exhaust their administrative remedies, as have [the 10] who did not pursue the grievance procedures at all.”

State Supreme Court Justice Belen found that there was no requirement that the employees use or complete the grievance procedures contained in their agreement before they were entitled to the benefits of Section 75. The contract did not purport to alter or supersede Civil Service Law Section 75, Belen said. In other words, the contract did not set out a contract disciplinary procedure in lieu of Section 75.

Justice Belen observed that the contract provided “nothing contained herein shall be construed to deny any employee his rights under Section 15 of the New York Civil Rights Law or under applicable civil service laws and regulations.”

In addition, the decision noted, “there is no provision in the agreement that states that an employee must utilize and exhaust the grievance procedure prior to utilizing his remedies provided by the Civil Service Law.”

The Court said that the employees including those “who were found guilty of the charges and whose employment was terminated,” are still entitled to payment for the period of any suspension in excess of 30 days and remanded the matter to the Board of Education for “the purpose of providing petitioners with the Civil Service Law Section 75(3) hearings where appropriate and for the computation of payment for any suspension that exceeded the statutory period.

Section 76 of the Civil Service Law, authorizes Taylor Law negotiations concerning a “contract disciplinary procedure” in lieu of the statutory disciplinary procedure otherwise applicable. A parallel provision is contained in Section 3020-a of the Education Law, the Section 75 equivalent for teachers and school administrators. In contrast, a “contract grievance procedure” typically is used to deal with an alleged failure to implement or the violation of the terms of a collective bargaining agreement.
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Eligibility for unemployment insurance between school years depends on the absence of an “assurance of reemployment”

Eligibility for unemployment insurance between school years depends on the absence of an “assurance of reemployment”
Aljandari v Buffalo Bd. of Education, App. Div., 245 A.D.2d 647
[Decided with Smith v Buffalo Board of Education]

Often temporary teachers seek unemployment insurance benefits during a school district’s summer recess. Key to their eligibility is the absence of any assurance of “next semester” employment by the District.

In the Aljandari case the Appellate Division sustained a determination by the Unemployment Insurance Appeals Board that Aljandari and other “totally unemployed” teachers were entitled to unemployment insurance benefits during the school’s 1995 summer recess.

Although Aljandari and the others were covered by a Taylor Law agreement between the School District and the union, the Appellate Division found that the agreement did not specifically define “the duration of their employment.”

Their employment, said the Court, was established by a letter of employment sent to these temporary teachers at the beginning of the academic year advising them that their appointment was for as long as their services were needed “but in no case beyond the [current] school” and that their assignment was strictly temporary.

This clear language did not provide the teachers with any assurance of reemployment following the summer recess period. The Court sustained the Board’s ruling that the teachers were eligible for unemployment insurance benefits for the period of their summer unemployment.

The Appellate Division said that the fact that some of the teachers “were eligible for fringe benefits during the summer and elected to have their salary prorated to extend during this time” did not “compel the conclusion” that they were not totally unemployed during the summer.

In effect, the Court ruled that it was the term of the teacher’s “professional obligation” rather than his or her payroll mode [21 pay periods or 26 pay periods] that was the critical element.

Creating new negotiating units

Creating new negotiating units
Erie County v PERB, Appellate Division, 247 A.D.2d 671

The Erie County v PERB case suggests that PERB has become more flexible regarding splitting sheriff’s department employees into separate collective bargaining units.

In Erie County Teamsters Local 264 represented a single large negotiating unit that included both Deputy Sheriff-criminal [“criminal deputies”] and Deputy Sheriff-officer [“officer deputies”] positions. The criminal deputies were primarily engaged in law enforcement activities while the “officer deputies” were assigned as guards at the County’s holding center and courts.

The Erie County Sheriff’s Police Benevolent Association [PBA] petitioned PERB seeking to establish a separate negotiating unit for the criminal deputies.

Ultimately PERB approved the establishment of this new “fragmented” unit for criminal deputies and certified the PBA as the exclusive negotiating representative for the new unit. In so doing, PERB reversed a finding by its Director of Public Employment Practices and Representation that “a separate and distinct law enforcement community of interest ... had not been established.”

The County and Local 264 appealed in an effort to have PERB’s determination [26 PERB 3069] annulled.

The Appellate Division said that although PERB had initially held that “deputy sheriffs are not appropriately fragmented from existing units which include other sheriff department employee,” citing County Association of Patrol Officers, 25 PERB 3062, it noted that PERB had reconsidered its earlier rulings on this issue.

The Court noted that in Dutchess County Sheriffs PBA, 26 PERB 3069, PERB “suggested that ‘the law enforcement responsibilities and duties of deputy sheriffs and other sheriff’s department employees may be sufficient to warrant the establishment of a separate unit of deputy sheriffs.’“

The Appellate Division sustained the establishment of a separate negotiating unit for the criminal deputies, holding that PERB ruling in Erie was “nothing more than a logical extension of its prior decision in Dutchess.”

The Court noted with approval PERB’s view that an analysis of the duties of positions warranted the establishment of separate negotiating unions. Here, it said, “even a cursory review” reveals the “distinguishing features of the class, training, typical work activities and the knowledge, skills and minimum qualifications required.”

The Court adopted PERB’s analysis, commenting that the documentary and testimonial evidence adduced at the hearing with respect to the differences in the Deputy Sheriff-criminal and Deputy Sheriff-officer title series fully supported PERB’s determination that only those employed in the Deputy Sheriff-criminal series “have criminal law enforcement as the exclusive or primary attribute of his or her employment.”

Nothing in the Appellate Division’s opinion, however, suggests that PERB applied the “community of interest” standard in determining negotiating units as set out in Section 207 of the Civil Service Law [the Taylor Law].

Section 207, in the pertinent part, provides that for the purposes of resolving disputes concerning representation status, PERB shall define the appropriate employer-employee negotiating units taking into account a standard that provides that: the definition of the unit shall correspond to a community of interest among the employees to be included in the unit. Nothing in Section 207 refers to determining negotiating units on the basis of “the respective job descriptions” of positions.