Reverse discrimination

Reverse discrimination
Hayden v Nassau County, CA2, 180 F.3d 42

The Hayden decision sets out some of the major considerations that are relevant in attempting to demonstrate “reverse discrimination” in civil service examinations.

After an exam was administered to 25,000 police department applicants in Nassau County in 1994, experts evaluated the 25 test sections administered to determine if any had an adverse impact on minority test-takers as well as whether the test questions were sufficiently job-related. The county only counted nine of the 25 test sections in computing the exam score. William Hayden and 67 other white, Latino and female applicants to the Nassau County Police Department brought a lawsuit in federal district court alleging that “a police officers’ entrance exam designed to minimize the discriminatory impact on minority candidates necessarily discriminated against them.”

The Second Circuit U.S. Court of Appeals in New York affirmed a U.S. district judge’s dismissal of the action. It called the exam a “race-neutral entrance examination with the purpose of eliminating or reducing the differential effects suffered by minority candidates.” Although Nassau County was “conscious of race” in redesigning its entrance exam, “it treated all persons equally in the administration of the exam,” the court said. Everyone took the same test and all tests were scored in the same manner, and no differential cutoffs or race norming was used, the court said.

The Court of Appeals rejected all of the arguments presented by Hayden, holding that he had failed to allege facts that, if proven true, would entitle the class to relief. Reviewing each of Hayden’s theories justifying relief, the court said that:

1. Equal protection: To state a claim for an equal protection violation, appellants must allege that a government actor intentionally discriminated against them on the basis of race, national origin or gender. Here is undisputed that the exam was administered and scored in an identical fashion for all applicants. The exam was not scored differently on the basis of a candidate’s ethnicity or gender, nor were differential cut-off points used for applicants of different races or sexes. In contrast to affirmative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts, the Circuit Court said that Nassau’s efforts were not unlawful.

2. Facially neutral policy applied in discriminatory manner: Also rejected was Hayden’s arguments concerning facially neutral ordinance was discriminatorily applied.

3. Discriminatory intent and effect: Although Hayden claimed “an equal protection violation”, the court said it agreed with the district court’s conclusion that in order to prevail it must be alleged that Nassau County harbored a discriminatory intent against the class and that the entrance examination disproportionately impacted them. No such claims which would demonstrate either discriminatory intent or discriminatory impact were put forth.

The court’s conclusion: “Nassau County sought to design a police officers’ entrance examination which would reduce the discriminatory impact of its hiring practices on minority candidates. Although the decision to redesign the exam certainly took race into account, the exam was administered and scored in a wholly race-neutral fashion. We conclude that race-neutral efforts to address and rectify the racially disproportionate effects of an entrance examination do not discriminate against non-minorities.”

Accordingly, the Circuit Court ruled that “the 68 white and Latino appellants, male and female, in this case fail to state a claim under the Equal Protection Clause, Section 703 of Title VII, and Sections 106 and 107 of the Civil Rights Act of 1991.”
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An interim award by an arbitrator does not constitute a "final determination” for the purposes of an Article 75 appeal challenging the award

An interim award by an arbitrator does not constitute a "final determination” for the purposes of an Article 75 appeal challenging the award
Matter of Geneva City School Dist. v Anonymous, 2010 NY Slip Op 06915, Decided on October 1, 2010, Appellate Division, Fourth Department

The Geneva City School District filed 16 disciplinary charges pursuant to Education Law §3020-a against a tenured teacher [Anonymous] employed by the district.

Anonymous asked for a hearing, and the parties selected, "by mutual agreement," an arbitrator to serve as the Hearing Officer pursuant to §3020-a[3][b][ii] of the Education Law. At the commencement of the hearing, Anonymous moved for summary judgment dismissing 11 of the 16 charges. The Hearing Officer made an "interim award" granting the motion. Before the hearing reconvened to consider the remaining 5 charges filed against Anonymous, Geneva filed an Article 75 action seeking to vacate the interim award, contending that it was irrational and violated an important public policy.

Supreme Court rejected Geneva’s arguments and denied the petition. The Appellate Division affirmed the Supreme Court’s ruling, explaining that “The interim award was not ‘a final and definite award’ resolving the matter submitted for arbitration” within the meaning of CPLR §7511[b][1][iii].

In the words of the Appellate Division, “Inasmuch as the interim award does not constitute a ‘final determination made at the conclusion of the arbitration proceedings’ there is no authority for judicial intervention at this juncture.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06915.htm
NYPPL

Termination for inability to produce proof of possession of a required license or certificate is not a dismissal in the nature of discipline

Termination for inability to produce proof of possession of a required license or certificate is not a dismissal in the nature of discipline
Matter of Cravatta v New York State Dept. of Transp., 2010 NY Slip Op 06952, decided on October 1, 2010, Appellate Division, Fourth Department

Michael J. Cravatta, a Highway Maintenance Worker with the NYS Department of Transportation, was required to possess a valid New York State Class B Commercial Drivers License [CDL] as a condition of his employment by the Department.

When Cravatta’s CDL was suspended, the Department terminated his employment without his being given a pre-termination hearing.

Cravatta sued and Supreme Court granted his petition seeking to annul the determination terminating him from his position. Transportation appealed the lower court’s ruling.

The Appellate Division, stating that “Supreme Court erred …,” reversed the lower court “on the law” and dismissed Cravatta’s petition in its entirety.

The court said that as Cravatta was “required to maintain” a CDL, he was properly terminated after his CDL was suspended because he lacked one of the credentials required for his position.

Further, said the court, “Cravatta's termination was not disciplinary in nature and thus was subject to neither the arbitration clause in the collective bargaining agreement nor the provisions of Civil Service Law §75,” citing Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275.

NYPPL Comment: Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Indeed, it could be argued that the employer has no alternative, as it could be considered unlawful to permit an unlicensed individual to perform the duties for which a license is required.

Although the loss of a required drivers license if frequently the basis for an employee being summarily terminated, the loss of an attorney’s license to practice law or the expiration of a temporary permit to teach would also result such action.

All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position and provide the individual a reasonable opportunity to produce a valid license or certificate.

Essentially, the courts have held that where an individual is required to hold a valid license in order to perform the duties of the position and the employee losses the required license or it expires, the individual cannot be allowed to perform the duties of the position.

This proposition was explored by the Appellate Division in Martin ex rel Lekkas, 86 AD2d 712.

Lekkas, an Assistant Clinical Physician had been permanently appointed to a position in the Office of Mental Retardation and Developmental Disabilities,. He was subsequently terminated from his position without notice or hearing because he did not obtain the required license to practice medicine in New York State issued by the Education Department (Education Law Section 8522).*

The Appellate Division affirmed a lower court ruling that Lekkas’ termination was unlawful.

The court explained that although it was lawful to summarily discharge an employee without notice and hearing if the worker is unable to produce his or her required license, this could be done only if the duties being performed required the possession of the license.

According to the record, Lekkas was performing administrative duties rather than “practicing medicine.” As he was not engaged in the practice of medicine, Lekkas was not “unqualified” with respect to performing his administrative duties without the license that would have been otherwise required had he been engaged in the practice of medicine.

* The issue arose after the Education Law was amended to require persons previously appointed as physicians to obtain a license to practice medicine. Lekkas had been appointed to the position Assistant Clinical Physician prior to the amendment but had not obtained a New York State license to practice medicine within the prescribed time period.

The Cravatta decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06952.htm
NYPPL

If a court finds that an administrative penalty is shocking to one's sense of fairness” it must remand the matter for a new penalty determination

If a court finds that an administrative penalty is shocking to one's sense of fairness” it must remand the matter for a new penalty determination
Matter of Liguori v Beloten, 2010 NY Slip Op 06739, Decided on September 30, 2010, Appellate Division, Third Department

Dr. James M. Liguori pleaded guilty to one specification of professional misconduct based upon his failure to maintain adequate records and agreed to a penalty consisting of “a censure and reprimand,” being on probation for three years under the supervision of a practice monitor, to pay a $25,000 fine and to perform “100 hours of nonmedical community service.”

Subsequently the Chair of the Workers' Compensation Board, Robert E. Beloten, removed Dr. Liguori’s name from the Board’s list of eligible providers.*

When Liguori’s request for reconsideration and, or, administrative review of the removal of his name from the list of “WCB providers” was denied, he commenced a CPLR article 78 proceeding seeking to annul the Chair’s determination.

Supreme Court granted Liguori’s petition, finding that the Chairman Beloten had “failed to adequately explain the basis for [Liguori’s] removal from the list of authorized providers and remitted the matter for further proceedings”.

In response to the Board’s issuing a new determination that, again, removed his name from the list of authorized providers that set out its basis for Liguori’s removal, Liguori again filed an Article 78 petition contending that the Board’s second determination was arbitrary and capricious and violated his right to due process.

Supreme Court granted Liguori’s petition. Although the court found that the explanation for Liguori’s removal was adequate, it ruled that “the Chair's determination nonetheless was arbitrary and capricious” and ordered the Board to restore Liguori to its list of eligible providers. The Board appealed.

The Appellate Division reversed the lower court’s ruling, explaining that "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law," citing the Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 – the so-called Pell Doctrine.

The Pell Doctrine stands for the proposition that courts must uphold the penalty imposed by an administrative body unless it is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness."

The Appellate Division said that in determining if a penalty meets the Pell standard, “the reviewing court may neither second-guess the administrative agency nor substitute its own judgment for the action taken.” Further, said the Appellate Division, should the court determine “that the penalty imposed cannot stand, the court may not fashion a reduced penalty” but must remit the matter to the agency for a redetermination of the penalty to be imposed.

As to its basis for vacating the Supreme Court’s determination, the Appellate Division said that it had concluded that based on its review of the record “we cannot say that the penalty imposed constitutes an abuse of discretion as a matter of law.”

* WCB providers are authorized to render care and treatment to individuals who had suffered work-related injuries.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06739.htm
NYPPL

Prima facie case of unlawful discrimination may be rebutted by a presentation of a non-discriminatory reason for the employment decision

Prima facie case of unlawful discrimination may be rebutted by a presentation of a non-discriminatory reason for the employment decision
Matter of Monsay v New York State Div. of Human Rights, 2010 NY Slip Op 06928, Decided on October 1, 2010, Appellate Division, Fourth Department

Evelyn H. Monsay filed charges against the State University College at Oswego with the New York State Division of Human Rights alleging unlawful discrimination based on age and gender.

The Division found that Oswego had not unlawfully discriminate against Monsay on the basis of gender or age and dismissed her complaint.

Monsay appealed but the Appellate Division sustained the Division’s determination, hold that it was supported by substantial evidence.

The court then observed that “Even assuming, arguendo, that [Monsay] established a prima facie case of gender or age discrimination, we conclude that the College rebutted the presumption of discrimination created by [Monsay’s] by presenting the requisite "legitimate, independent, and nondiscriminatory reasons to support its employment decision[s."

It should be noted that once a prima facie case of alleged unlawful discrimination is rebutted by the employer with “legitimate, independent and nondiscriminatory reasons” for its decision, the burden of going forward shifted to Monsay to demonstrate that the explanation offered by Oswego was mere subterfuge for its unlawful discriminatory actions. Apparently Monsay was unable to do so to the satisfaction of the Division of Human Rights.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06928.htm
NYPPL

Vacating an arbitration award

Vacating an arbitration award
Local 756 ex rel Westfall v Cohoes, 263 AD2d 652

The Westfall decision concerned an arbitration award on a ruling involving the denial of Section 207-c benefits. It sets out some of the basic elements considered by courts when they are asked to vacate an arbitration award.

The case also shows the distinction that can be made between a “job related” illness, such as stress, and an injury incurred “in the performance of duty” for the purposes of Section 207-a or Section 207-c.

Cohoes and Local 756 negotiated a Taylor Law provision in which it was agreed that Section 207-a and Section 207-c disputes would be resolved in accordance with the grievance procedures set out in the collective bargaining agreement.

Kenneth Westfall, a police lieutenant employed by the City of Cohoes, filed applications in March 1997 and in June 1997 seeking 207-c benefits. The city rejected both of Westfall’s applications, concluding that Westfall’s injury -- symptoms associated with stress and depression -- was not sustained in the performance of his duties.

The Appellate Division commented that “Westfall suffered from stress and depression as a result of conflicts with a supervisor” and that these episodes of stress and depression led to absences.

The issue was submitted to arbitration in accordance with the grievance procedure set out in the Taylor Law agreement between the city and the union. Further, the parties had stipulated that the question for the arbitrator to resolve was whether Westfall “[s]hould ... receive [General Municipal Law Section] 207-c benefits for [his] illness”.

In the course of the arbitration, there was testimony from three physicians and a clinical psychologist, each of whom had examined Westfall. All agreed that Westfall suffered from depression, but that this illness was not caused by actual police duties but, rather, from an interpersonal conflict with a superior.

Considering “the uniqueness of the hazards faced by police officers,” the arbitrator said that Westfall’s illness, although job related, was not a result of the performance of his police duties and therefore not the type of illness encompassed under the statute. The conclusion: Westfall “should not receive [Section] 207-c benefits.”

Local 756 filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking a court order vacating the award. It contended that (1) the award was irrational or, in the alternative, (2) the award violated public policy. The union’s petition was dismissed by the Supreme Court and the local appealed, asking the Appellate Division review the matter.

The Appellate Division agreed that a court may vacate an arbitration award if it finds that the award is violative of a strong public policy or it is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power. The problem here was that the Appellate Division concluded that the arbitrator’s award did not offend any standard.

The Appellate Division also commented that “[t]he power of the courts to intervene is even more restricted when the arbitrator’s interpretation resolves the question submitted, and not merely one aspect of the dispute”.

As to the local’s claim that the award was “irrational,” the Appellate Division said that the arbitrator’s interpretation of the statute, even though the interpretation “may have been erroneous or inconsistent with seemingly relevant decisional authority,” under the standard that the courts must use when considering vacating arbitration awards, “we are unable to conclude that the arbitration award denying General Municipal Law Section 207-c benefits under these circumstance was totally irrational.”

On this point the court, citing Silverman [Benmor Coats], 61 NY2d 299, said that an arbitrator is not bound by principles of substantive law and may do justice as he or she sees fit, applying his or her own sense of law and equity to the facts of the subject dispute.

Turning to the local’s public policy argument, the Appellate Division said that it was not persuaded that the award violates strong public policy, commenting that “the Court of Appeals has repeatedly cautioned that the public policy exception is narrow and an award may be set aside on this ground “[o]nly when the award contravenes a strong public policy, almost invariably involving an important constitutional or statutory duty or responsibility.”

Before a court may intervene by vacating an arbitration award on public policy grounds, it “must be able to examine an arbitration agreement or an award on its face, without engaging in extended fact-finding or legal analysis, and conclude that public policy precludes its enforcement,” quoting Matter of Sprinzen [Nomberg], 46 NY2d 623, 631). Finding that Local 756’s contentions did not satisfy this rigorous standard, it affirmed the lower court’s decision denying the local’s application to vacate the award.
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Workers’ Compensation Leave - Civil Service Law Section 71
House v NYS Office of Mental Health, 262 AD2d 929

Martha I. House, a keyboard specialist at Richard H. Hutchings Psychiatric Center, suffered a work-related injury in December 1991. As a result she was frequently absent from work. The psychiatric center deemed these absences to be pursuant to workers’ compensation leave under Civil Service Law Section 71.

When the cumulative total of her Section 71 absences exceeded one year, the appointing authority elected to terminate her from her position. House was told that she could apply for reinstatement to her former position if she could demonstrate that she was medically fit.*

House submitted a note from her physician stating that she was medically fit. The Psychiatric Center referred her to a physician employed by the State's Employee Health Service for an evaluation. The EHS physician stated that House was “too symptomatic to return to work and perform the full duties of her position.” Based on the EHS physician's evaluation House was terminated from her position.

When House sued seeking reinstatement to her job and back pay a State Supreme Court decided that the Center had not given House “proper notice of the procedure for requesting a post-termination hearing, resulting in the denial of her due process right to an administrative appeal.”

Supreme Court remitted the matter for an administrative hearing on the issue of House’s medical condition and her ability to perform her job-related duties at the time of her termination. It declined, however, to order either House’s reinstatement or back salary at this point in the process.

Both House and the employer appealed. The Appellate Division ruled although House was entitled to a post-termination hearing, until that administrative remedy has been exhausted, a resolution of her other demands would be premature.

The Appellate Division said that once it has been determined by the appointing authority’s physician that an employee is unfit to serve, he or she cannot be restored to employment until there is a finding that the employee is medically fit to perform the duties of the position.

Thus, the Supreme Court’s judgment remitting the matter for an administrative hearing to develop the record regarding petitioner’s medical fitness was appropriate.

N.B. This decision suggests that the due process procedures available to an individual on leave pursuant to Section 71 have been confused with the administrative procedures required to be followed in the event the appointing authority wishes to place the individual on involuntary leave pursuant to Section 72 of the Civil Service Law, i.e., absence due to an injury or disease that is not job-related. Further, if the appointing authority subsequently elects to terminate the employee after he or she has been continuously absent from his or her position for one year or longer pursuant to Section 72, it may due so in accordance with the provisions set out in Section 73 of the Civil Service Law.

Insofar as Section 71 leave is concerned, the appointing authority has the discretion, but is not required, to terminate an employee on Section 71 leave once the individual has been absent from work due to the underlying injury or disease for a cumulative period of at least one year. Presumably the termination is effected while the individual is actually absent from work and on leave pursuant to Section 71.

Section 71 then provides, in pertinent part, that in the event an employee is terminated pursuant to Section 71 of the Civil Service Law "Such employee may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission."

Understandably, it is the individual's, rather than the employer's responsibilty to make such an application, as only the individual can determine if his or her disability is no longer an impediment to his or her performing the duties of his or her position.

Section 71 then provides that "If, upon such medical examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his or her former position, he or she shall be reinstated to his or her former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant
position for which he or she was eligible for transfer."

If the medical officer does not certify the individual is physically and mentally fit to perform the duties of the position, presumably the individual could file an Article 78 petition challenging the determination.

In any event, if the individual is not determined to be qualified to return to his or her position, he or she may make additional applications for evaluation thereafter.

* In contrast, Section 72 of the Civil Service Law provides for leaves of absences required because of non-work related injuries or disease. An individual who has been absent for a consecutive one-year period may be terminated pursuant to Section 73 of the Civil Service Law.
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Adjusting a school's annual budget

Adjusting a school's annual budget
Leman v South Orangetown CSD, Decisions of the Commissioner of Education #14166

South Orangetown Central School District’s school superintendent position became vacant April 1, 1998. In preparing its budget for the 1998-99 school year, the district included an appropriation of $131,885 for the superintendent’s salary line as the amount it expected would be required to employ a new superintendent.

The district later entered into a contract with its new superintendent, Eileen Gress, that provided for an annual salary of $142,000 plus benefits. The total amount of Gress’ compensation was disclosed as required by Section 1716 of the Education Law. The district adopted a second, revised budget reflecting Gress’ compensation.

James Leman filed an appeal with the Commissioner of Education contending, among other things, that the board’s actions were improper as they involved “changes ... to aid the central administration portion of the budget.” He asked the Commissioner to void the district’s contract with Gress and to “direct the district to enter into new negotiations to fill the superintendent position.”

The Commissioner dismissed Leman’s appeal on the merits noting that the “actual figure for the superintendent’s salary and benefits was included in the proposed budget that was made available at the ... public hearing and presented to the voters....”

This, said the Commissioner, complied with the requirements set out in Section 1804.4 of the Education Law.

Section 1804.4 requires the board of a central school district to prepare and present a school budget at a budget hearing “at least 7 but not more than 14 days before the district meeting at which the budget vote will occur.” The record, said the Commissioner, showed that the district met this requirement.
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Applying for disability retirement

Applying for disability retirement
Grossman v McCall, App. Div., Third Dept., 262 AD2d 923, Motion for leave to appeal denied, 94 NY2d 765, Appeal on Constitutional grounds dismissed, 94 NY2d 796

Retirement and Social Security Law Section 62(aa)(2), allows a member of a public retirement system eligible for ordinary disability retirement to file an application for benefits if (1) the member is still in service at the time of the application or (2) the member applies within 90 days from the date of his or her discontinuance of service. The Appellate Division’s decision in the Grossman case illustrates that if an application for ordinary disability retirement is untimely, the application will be rejected -- even if there are extenuating circumstances.

The case arose after the Comptroller disapproved the application for ordinary disability retirement filed on behalf of Herbert E. Grossman by his wife. Grossman, a psychologist with the Bronx Developmental Services, sustained an injury at his home. He was terminated from his position effective July 27, 1990.

More than three years later his wife, Marsha Grossman, acting under a power of attorney, filed an application with the New York State Employees’ Retirement System [ERS] for ordinary disability retirement benefits. Although Mrs. Grossman proved that her husband “was mentally, psychiatrically and neurologically disabled after the accident,” the fact that the application was not filed within the time allowed by Section 62(aa)(2) proved critical. The Appellate Division said that Grossman’s illness did not toll the mandated filing period.

The court also rejected Mrs. Grossman’s contention that her husband had a property interest in the benefit and that the rejection of his application constituted a denial of a property right without due process. The Appellate Division said that filing of a timely application “constitutes a condition precedent to the ripening of any right to these benefits from which a claim of due process can arise.”

The decision also reports that ERS “received a request on [Grossman’s] behalf for an application for benefits by telephone on September 25, 1990 and that an application was sent to his home on October 3, 1990 -- when sufficient time existed for [Grossman] to have filed a timely application.” In addition, said the court, “the record reflects that [Grossman] did, in fact, have sufficient capacity to timely file [for], and therefore receive, social security disability benefits.”
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Employment contracts in public education

Employment contracts in public education
Brousseau v Shenendehowa CSD, Decisions of the Commissioner of Education #14193

The Shenendehowa Central School District and its Director of Finance, Susan M. Martin, signed an “employment agreement” for the period May 13, 1998 through June 30, 1999 setting out the terms and conditions of Martin’s employment with the district. The agreement also provided that it could be “renewed annually thereafter.”

Eugene Brousseau challenged the authority of the school board to enter into such an agreement with its Director of Finance. He asked Commissioner of Education Richard P. Mills to rescind the agreement. The district, in support of its action, argued that it had authority under Education Law Section 1709(33) “to enter into employment agreements establishing the terms of employment for its employees.”

The Commissioner commenced his analysis by commenting that “there are a limited number of provisions in the Education Law that expressly authorize a board of education to employ specified individuals” such as librarians, “qualified teachers,” an auditor and a superintendent.

However, said the Commissioner, the fact that there are no express provisions for the employment of individuals other than those specifically provided for by law “does not foreclose a board from employing individuals in such positions as are necessary to operate and maintain the school district, because the employment of such persons is a reasonable and necessary means for the board to fulfill its duty to superintend, manage, and control the affairs of the district pursuant to [Education Law] Section 1709(33).”

The Commissioner dismissed Brousseau’s appeal noting that:

1. The authority to contract with employees is implicit in the act of employing such individuals -- hiring an individual “itself creates a contract, whether express or implied, oral or written;”

2. A board of education, “as a public authority,” has a common-law right to contract with teachers and other necessary personnel;” and

3. A board of education may enter into contracts with its employees “to the extent the contract is not inconsistent with other statutory conditions,” citing Courtemanche v Enlarged City School District of Middletown, 686 F.Supp.2d 1025.

Therefore, the Shenendehowa board’s entering into a contract with Martin concerning the terms and conditions of her employment “is authorized as an implicit, reasonably necessary power of the board ... and in addition is authorized pursuant to the board’s common law right to contract.”
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Suspended employee found to have submitted required documents at the earliest date practicable

Suspended employee found to have submitted required documents at the earliest date practicable
NYC Department of Sanitation v McCaffrey, OATH Index #2518/10

OATH Administrative Law Judge Alessandra Zorgniotti recommended dismissal of charges that a sanitation worker, John McCaffrey, had failed to report to the clinic on two days as ordered and had failed to submit adequate documentation of his claim that he was unable to travel on those dates.

Judge Zorgniotti found McCaffrey had a legitimate medical excuse, which prevented him from traveling on those days.

Under Department rules the worker had five business days from the date he was ordered to appear and supply the clinic with a note, but McCaffrey was not permitted to submit one because he was on suspension.

Instead, McCaffrey submitted the note on the day his suspension was lifted. Because McCaffrey had submitted the note at the earliest practicable time following the termination of his suspension, Judge Zorgniotti said she found the submission timely under relevant circumstances.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2518.pdf
NYPPL

School Board to provide representation to school employee sued for striking a student in violation of Board policies in lawsuit that followed

School Board to provide representation to school employee sued for striking a student in violation of Board policies in lawsuit that followed
Matter of Sagal-Cotler v Board of Educ. of the City School Dist. of the City of NY, 2010 NY Slip Op 32657(U). September 22, 2010, Supreme Court, New York County, Judge: Carol E. Huff [Not selected for publication in the Official Reports]

Deborah Sagal-Cotler, a paraprofessional employed by the New York City School District, was supervising and escorting a class to the school cafeteria when one of the students repeatedly failed to follow her instructions. Sagal-Cotler then “yelled [the student’s] name and struck him in the face.”

The student’s commenced a civil action based on this incident [Watson v City of New York, Index No. 17534/09 (Sup Ct, Kings County)] in which Sagal-Cotler was a named respondent. Sagal-Cotler’s request for legal representation in the matter was denied in a letter from the City of New York Law Department.

In response, Sagal-Cotler filed an Article 78 petition seeking an order requiring the New York City Board of Education to provide her with legal representation, indemnification, reimbursement for attorneys' fees, and to hold her harmless for any financial losses resulting from the civil action, citing Education Law §3028 in support of her demand.

The Board, contending that Education Law §3028 was inapplicable and that §2560 of the Education Law controlled in this instance, opposed Sagal-Cotler’s motion. The Board argued only §2560 applied and provides that “[I]n a city of having a population of one million or more, the members of each community school board in such city, the teaching or supervising staff, officer or employee of such board . . . shall be entitled to legal representation and indemnification pursuant to the provisions of. . . section fifty-k of the general municipal law.”

The Board argued that although General Municipal Law §50-k(2) provides for such representation and indemnification it is applicable only with respect of acts or omissions that occurred “while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of the agency at the time the alleged act or omission occurred.” Here, said the Board, Sagal-Cotler “concedes that her action violated board rules against corporal punishment.”

Accordingly, claimed the Board, “if §50-k(2) were to apply, she would not be entitled to the relief she seeks.”

The court disagreed, holding that Education Law §3028 rather than General Municipal Law §50-k(2) controlled as “It is well settled that, in a conflict between a statute of general applicability and one of specific applicability, the special statute controls,” citing Board of Managers of Park Place Condominium v Town of Ramapo, 237 AD2d 537.

Here, said the court, Education Law §3028 is the more specific statute, because it provides specifically for situations involving disciplinary action in an education context, citing Tinmerman v Bd. of Educ. of the NYC School District, 50 AD3d 592. In Tinmerman the court held that as the “proceeding against petitioner clearly arose out of disciplinary actions that he took against pupils, respondents should reimburse petitioner for the attorneys’ fees and expenses he incurred in defending himself.”

However, this result would hinge on whether Sagal-Cotler was acting within the scope of her employment or duties during the incident. Judge Huff concluded that she was based on the ruling in Blood v Bd. o f Educ, of the City of New York, 121 AD2d 128. In Blood the Appellate Division found that “although in violation of regulations, a teacher acted within the scope of her duties where, angered by a student, she swung a book bag that injured another student.”

The court’s rationale: "Surely, it is not so unusual an occurrence that a teacher loses her temper with her class. Indeed, displays of anger in the classroom cannot be regarded as other than natural and sometimes necessary incidents of a teacher’s work. Nor can it be reasonably expected that a teacher’s anger will always be well gauged to the occasion and unaccompanied by impulsive behavior. Such behavior, although undesirable; is a generally foreseeable eventuality of teaching and, as such, must be deemed within the scope of a teacher’s employment."

Applying these rulings, Judge Huff concluded that Sagal-Cotler’s conduct “fell within the scope of her employment.”

Concluding that the Board's “misapplication of General Municipal Law §50-k(2)” was arbitrary and capricious,” that part of Sagal-Cotler’s petition seeking legal representation and reimbursement for attorneys’ fees in the Watson case was granted.

However, said the court, Sagal-Cotler’s claims for indemnification and to be held harmless are premature and were denied without prejudice pending the outcome of the Watson case.

* Education Law §3028 address “Liability of school district for cost and attorney’s fees of action against, or prosecutions of, teachers, members of supervisory and administrative staff or employees, and school volunteers.” It, in relevant part, provides “Each board of education, trustee or trustees in the state shall provide an attorney or attorneys for, and pay such attorney’s fees and expenses necessarily incurred in the defense of a teacher, member of a supervisory or administrative staff or employee, or authorized participant in a school volunteer program in any civil or criminal action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment or authorized volunteer duties.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32657.pdf
NYPPL