Challenging a Section 75 disciplinary settlement agreement

Challenging a Section 75 disciplinary settlement agreement

Johnston v Triborough Bridge and Tunnel Auth., NYS Court of Appeals, 97 NY2d 627

Edward P. Johnston, an employee of the Triborough Bridge and Tunnel Authority [TBTA], was involved in an after-hours altercation during which his service revolver discharged. As a result, disciplinary charges were filed against him pursuant to Section 75 of the Civil Service Law.

On April 12, 1989, Johnston and the TBTA settled the disciplinary action and Johnston signed a “Waiver of Section 75 Hearing and Acceptance of Recommended Penalty.” The waiver included the following provisions:

1. Johnston agreed to waive his right to a disciplinary hearing pursuant to Civil Service Law Section 75 and his right to file an appeal pursuant to Civil Service Law Section 76;

2. Johnston agreed to serve a probationary period of 12 months “exclud[ing] all time during which he was not on duty;” and,

3. During this disciplinary probationary period, the TBTA, in its sole discretion, could dismiss him for any new violation of its rules or regulations.

Johnston, while serving his disciplinary probationary, was injured while on duty. As a result he was absent from work from August 19, 1989 until October 1996. In June 1997, following allegations that he had abandoned his post without authorization, TBTA dismissed Johnston without a hearing.

Johnston appealed his termination to the New York City Civil Service Commissioner, arguing that he was no longer on probation on the effective date of his dismissal. This, he contended, meant that was entitled to a hearing pursuant to Civil Service Law Section 75 before he could be terminated.

Johnston based his claim on the theory that his probationary period should be calculated in calendar days. TBTA, on the other hand, contended that the calculation should be based his workdays --only on the days Johnston actually worked, in this instance 253 days. Thus, TBTA argued, Johnston was still serving his disciplinary probation when he was dismissed.* 

As to Johnston's right to appeal to the City's Civil Service Commission, TBTA contended that the Commission lacked jurisdiction to hear the appeal because the settlement agreement specifically provided that Johnston waived his Section 76 rights of appeal.

The Commission agreed, dismissing Johnston's appeal on the ground that it did not have jurisdiction. The Appellate Division, however, sustained a lower court's ruling that “the Commission was bound to construe the 1989 agreement to ascertain whether the waiver therein remained effective at the time of petitioner's termination” [Johnston v TBTA, 278 AD2d 34-35]. The Court of Appeals reversed this holding.

The Court of Appeals held that Section 76 “solely authorizes the Commission to hear appeals from hearings in connection with disciplinary proceedings under section 75.” As there was no such proceeding in Johnston's case, the Commission had no jurisdiction to hear his application to review his discharge, which was not effected under Section 75.

The Court also commented that Section 76(2) limits the Commission's review to the record and transcript of the disciplinary hearing. As there was no record or transcript in this instance, the Commission had no jurisdiction to determine the matter.

In contrast, the Court of Appeals noted that Johnston “could have brought an Article 78 proceeding at the time of his dismissal in June 1997 challenging the TBTA's conclusion that he was a probationary employee” [emphasis supplied], which he failed to do. Accordingly, the Court held that Johnston “cannot reassert his contentions by appealing to the Commission because its jurisdiction is explicitly limited to appeals of Section 75 determinations.

* Typically probationary periods are automatically extended for a term equal in length to the probationer's absence during his or her probationary period. In many jurisdictions the rules allow the appointing authority, at its discretion, to deem part or all of such absence[s] “time served” as a probationer. One notable exception: a probationer who is called to active military duty is deemed to have satisfactorily served in his or her probationary period while on military leave if he or she is honorably released from military service and is subsequently timely reinstated from such leave.

Constructive termination

Constructive termination

Duffy v Paper Magic Group, Inc., CA3, 265 F.3d 163

It is not enough to that the individual feel stressed or frustrated by his or her job situation to claim constructive discharge. The individual must show the existence of a pattern of “intolerable conduct” to support such a claim.

Bernadine Duffy complained that she was constructively discharged as a result of a continuing pattern of discrimination by Paper Magic. Among the examples of treatment she contended resulted in her constructive discharge were the following:

1. She was “passed over” for a promotion;

2. Her supervisor “bent over backwards” to make another, younger, employee's “life easier.”

3. She worked overtime hours, but unlike other salaried employees, did not receive overtime pay.

4. She was one of two supervisors excluded from a company meeting and from a training seminar for supervisors.

5. Supervisors made derogatory remarks about her age.

Duffy said that she complained about such conduct to her employer but nothing changed. As a result of these working conditions Duffy said that her health deteriorated, requiring her to seek treatment by a physician. Duffy resigned from her position and filed charges of unlawful discrimination with the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission.

In the litigation that followed, the District Court concluded that Duffy failed to demonstrate that she was constructively discharged or otherwise suffered an adverse employment action within the meaning of the Age Discrimination in Employment Act [ADEA] and entered summary judgment in favor of Paper Magic.

The Circuit Court sustained the lower court's action, rejecting Duffy claim that she was constructively discharged because she experienced a “continuous pattern of discriminatory treatment” at Paper Magic.

It appears that Duffy's testimony focused almost entirely on her subjective view that Paper Magic constructively discharged her but she failed to establish any of the situations set out by the Third Circuit in Clowes v Allegheny Valley Hospital, 991 F.2d 1159, suggesting constructive discharge.

Elements that could support a finding of constructive discharge include the employer's threats to fire an employee, encouraging the employee to resign, or involuntarily transferred an individual to a less desirable position.

Among other actions that could support a claim of constructive discharge - the employer is aware that the employee has been subjected to a continuous pattern of harassment and the employer does nothing to stop it.

The court cited Aman v Cort Furniture Rental Corp., 85 F.3d 1074, to illustrate the course of conduct that could be deemed constructive discharge. In Amen the court said that continuously subjecting a black worker to racially-based insults; admonitions “not to touch or steal anything”; being forced to do menial tasks not assigned to white employees; subjecting the individual to actions by co-workers withholding information and stealing documents needed to perform the job; and the employer's threats to “get rid of [the employee].”

These elements were not present in Duffy's case. Her department was understaffed. But management's deliberate delay in providing needed assistance, thereby making her job more difficult, did not make her job impossible. It simply required her to work longer hours until help arrived, making her job more stressful, but not unbearable. In the words of the court, “employees are not guaranteed stress-free environments and discrimination laws cannot be transformed into a palliative for every workplace grievance, real or imagined, by the simple expedient of quitting.”

The Circuit Court also ruled that Duffy's attempt to use her physician's opinion that her job had an adverse affect upon her health to bolster her claim that her working conditions were intolerable also fails. These health problems support an inference that Duffy's environment was stressful. Again, leaving a stressful environment does not amount to constructive discharge.

Duffy's own explanation as to why she resigned, said that her decision was based, in part, on her son's recent graduation from college and her resultant financial ability to leave. This, said court, “supports our conclusion that [Duffy] was not constructively discharged.”

The Circuit Court decided that Duffy had not produce evidence from which a reasonable jury could find an adverse employment action -- a prerequisite to a successful age discrimination claim -- and affirmed the District Court's summary judgment.

Disqualifying applicants for a particular job

Disqualifying applicants for a particular job

EEOC v Woodbridge Corp., CA8, 263 F.3d 812

Mathews v The Denver Post, CA10, 2001 WL 967797

The Woodbridge and Mathews cases concern similar issues: disqualifying an individual with a disability for a particular job or assignment.

The Woodbridge case asks: Does the employer violate the ADA if it rejects an applicant a particular job because test reveal that he or she is susceptible to certain types of injuries?

The Mathews case asks: Does the employer violate the ADA if it rejects an employee with epilepsy for a job because an essential function of the job requires the operation of heavy machinery?

The Woodbridge Case

The Equal Employment Opportunity Commission sued the Woodbridge Corporation, contending that it violated the ADA when it excluded nineteen applicants for jobs on one of its manufacturing lines because of test results that indicate those applicants may be susceptible to sustaining injuries from repetitive motion.

The Circuit Court affirmed a district court's determination that the ADA was not violated as such individuals were not “disabled” within the meaning of the ADA.

EEOC alleged that Woodbridge unlawfully discriminated against individuals rejected because they were determined to be more likely than others to develop carpal tunnel syndrome.

The company, a producer of polyurethane foam pads used in automobile seats, based its decisions rejecting these applicants on the basis of results of a test designed to reflect abnormal wrist neurometric readings in connection with repetitive wrist motions that its workers on a specific manufacturing foam line would experience.*

Applicants with abnormal neurometry readings were not hired for these foam line production positions although they were considered to be eligible for jobs in other areas within the Woodbridge's plant. EEOC, however, contended that Woodbridge discriminated against the rejected applicants on the basis of “a perceived disability, as Woodbridge regarded the applicants as substantially limited in the ability to work.”

The Circuit Court said that the ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Major life activities include caring for one's self, performing manual tasks, walking, seeing, hearing, breathing, learning and working.**

According to the ruling, an impairment is “substantially limiting” if it renders an individual unable to perform a major life activity that the average person in the general population can perform, or if it significantly restricts the condition, manner, or duration under which an individual can perform a particular major life activity as compared to an average person in the general population. Such a determination is to be made on a case-by-case basis.

The district court held that the “only documented perception of the [rejected] applicants is that they were not physically qualified to perform the unique requirements of [specific] Woodbridge manufacturing positions. This perception does not prevent the applicants from obtaining employment in a broad class of jobs.”

In contrast, a person is deemed to be substantially limited with respect to working if he or she is “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.”

In making such a determination, the court considers such factors as the number and type of jobs from which the impaired individual is disqualified; the geographical area to which the individual has reasonable access; and the individual's job training, experience, and expectations.

As the purpose of the ADA is to prevent “substantial personal hardship in the form of significant reduction in a person's real work opportunities,” the court must ask if a person's particular impairment constitutes a significant barrier to employment in a class of jobs or a broad range of jobs.

The issue here was whether the nineteen applicants were regarded as “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skill, and abilities.”

According to the decision, “the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”

What is required to prevail? Proof that the individual's overall employment opportunities are limited rather than being viewed as unqualified for a particular job or assignment. In other words, it is necessary to show that the individual is precluded from being selected for more than one type of job. Being disqualified for but a single, specialized job or a particular job of choice does not satisfy this requirement.

In the words of the Circuit Court: If jobs utilizing an individual's skills are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.

Finding that the nineteen applicants represented by EEOC were not precluded from employment in more than one type of specialized job, the Circuit Court sustained the lower court's granting summary judgment dismissing EEOC's complaint.

The Mathews Case

In Mathews, the U.S. Circuit Court of Appeals, Tenth Circuit, ruled that an employee with epilepsy is not qualified for a job as a journey-level mailer at a newspaper because an essential function of his job requires his operating heavy machinery.

John Mathews sued his former employer, the Denver Post, claiming that it had laid him off in violation of the Americans with Disabilities Act. The district court granted summary judgment to the Post, holding that Mathews had not shown he was a disabled person within the meaning of the Act, nor had he shown he was qualified to do his job during the period November 1994 to May 1996.***

The Circuit Court affirmed the lower court's determination.

Mathews, who started working for the Post in 1983, was promoted to journeyman level mailer in 1988, and is currently employed by the Post. Mathews suffers from epilepsy, including grand mal seizures. He suffered a grand mal seizure on September 6, 1994 and was hospitalization for two days. His doctor told him not to return to work for one month.

Based on the information received from Mathews' personal physician, Dr. Jack Sylman, in a letter dated October 8, 1994, the Post terminated Mathews on the grounds that his medical restrictions prevented him from performing the essential functions of his job. At the same time the Post attempted to assist Mathews by looking for a position at the newspaper that he could perform without offending his medical restrictions.

Dr. Sylman stated that Mathews did have an epileptic seizure and “I would not be comfortable with him either driving, or being near or operating heavy equipment for at least three months. This is a fairly standard guideline generally accepted within the community.” Dr. Sylman also told the Post that Mathews has epilepsy and has had isolated grand mal seizures, some of which have occurred at work. He also said that: Unfortunately there is no cure for this condition though reasonable control has been achieved with Dilantin. However, I cannot assure him that he might not have isolated sporadic seizures without warning. Ideally, it would be best if he were not to drive or work around heavy machinery.

Mathews sought to return to work, suggesting that the Post accommodate him by letting him do the part of the journey-level mailer job that did not involve working with machines. The Post rejected the proposal. On May 9, 1996, Mathews's doctor lifted his medical restrictions, stating that he “should be able to drive or work with machinery.” The Post then rehired Mathews back at his old job.

Mathews sued the Post, claiming that the Post discharged him in violation of the ADA, failed to provide a reasonable accommodation for his disability, and fired him in retaliation for filing a complaint with the EEOC.

The district court held that Mathews had not shown that he was disabled within the meaning of the ADA. Although Mathews argued that his epilepsy substantially limited him in the major life activity of working, the court decided that he was only able to show that his epilepsy interfered with his ability to do particular jobs. To prevail in his ADA action, Mathews was required to show that he was unable to do a class of jobs or a broad range of jobs in order to establish that there was a substantial limitation on his ability to work.

Further, said the court, Mathews had not shown he was a qualified individual, because he could not perform the journey-level mailer's job while he was under doctor's orders not to work with or around dangerous machinery.

Mathews appealed. The Circuit Court dismissed the appeal, concluding that the district court had ruled correctly on the qualification issue and thus it was unnecessary to address the question of whether Mathews was disabled.

* The test used by Woodbridge for this evaluation was discontinue as the company had concerns as to its reliability.

** In Sutton v United Air Lines, Inc., 527 US 471, the Supreme Court suggested, but did not specifically hold, that working was a major life activity

*** Relying on Mathews' physician's statement, the Post did not allow Mathews to work during this period.

Civil deputy sheriff should not have to wait to be harmed before being given weapon and firearms training

Civil deputy sheriff should not have to wait to be harmed before being given weapon and firearms training

Mtr. of Monroe County Deputy Sheriffs Assoc.; Arbitration Award, PERB Case A200-439

Monroe County and the Monroe County Deputy Sheriffs Association submitted the following issue to PERB Arbitrator James A. Gross: Whether the Monroe County Sheriff's Office created an unusual work condition by failing to provide firearms and proper training in connection with firearms for the Civil Bureau.

Holding that the Sheriff's Office did, in fact, create an unusual work condition by failing to provide civil deputy sheriffs with firearms and training, Arbitrator Gross directed that Monroe County “provide firearms to civil deputies when they perform their duties.”

The parties apparently conceded that the grievance, as presented to the arbitrator, was subject to the contract grievance procedure pursuant to Article 36.2.1. of the collective bargaining agreement. Article 36.2.1 set out the definition of a grievance and provides as follows:

A grievance shall be defined as any claimed violation of a specific provision of this agreement, or any matter that relates to employee health and safety.

The County argued that “the issuance of weapons does not comply with the duties and functions of non-criminal civil deputies position [sic]” and that its civil deputies are not performing police functions. The County also maintained that there was no evidence that any civil deputy had been injured performing his or her duties “for at least 30 years” as a result of his or her performing civil deputy sheriff duties.

The Association contended that the civil deputies should carry a weapon because they are perceived to be law enforcement personnel and displayed badges. According to the Association:

1. A badge is recognized as a police presence; and

2. Any person identified as a law enforcement officer is automatically in a high-risk situation either by becoming a target for hostility or by being drawn into hostile and dangerous situations involving others.

Arbitrator Gross ruled that the County violated Article 36.2.1 by failing to provide firearms to its civil deputy sheriffs. 

After considering the testimony of witnesses, the arbitrator's concluded that:It would be irresponsible to deny these Civil Deputies the equipment they need to meet the greatest threats to their safety simply because no Civil Deputy in Monroe County has been killed or seriously injured in the performance of their duties - as has happened elsewhere in New York State. No person should have to wait to be harmed before being given adequate protection.

Using an employee personnel files to determine an appropriate disciplinary penalty

Using an employee personnel files to determine an appropriate disciplinary penalty

Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470

Perhaps the leading case concerning the use of an employee's personnel records in disciplinary procedures is the Court of Appeals’ decision in Bigelow v Trustees of the Village of Gouverneur

In Bigelow, the Court of Appeals held that if a civil service employee is found guilty of misconduct, a public employer may consider material included in the employee's personnel files in determining the appropriate sanction.

The employee, however, must first be advised of the information in his or her personnel record that the appointing authority will consider in determining the penalty and then must be given an opportunity to submit a written response concerning that information.

Individual serving in major nontenured policy-making or advisory position ineligible for unemployment insurance benefits upon separation

Individual serving in major nontenured policy-making or advisory position ineligible for unemployment insurance benefits upon separation

Fromer v Commissioner of Labor, 286 AD2d 816

The critical issue in this aspect of the litigation brought by Howard A. Fromer in his effort to obtain unemployment insurance benefits was his employment status with the now abolished State Energy Office: was he an independent officer of the agency?

The Appellate Division, Third Department, sustained a ruling by the Unemployment Insurance Appeals board holding that Fromer was not eligible for unemployment insurance benefits following his termination when his position was abolished. Fromer had served as general counsel to the State Energy Office from October 1988 until it was abolished on March 31, 1995.

The reason for Fromer's disqualification for benefits: The Board determined that Fromer served in a major nontenured policymaking or advisory position. Accordingly, he was “statutorily excluded” for such benefits by Labor Law Section 565(2)(e).

Earlier the Appellate Division had remanded the case to the Board for it to consider Fromer's argument that because he was a veteran within the meaning of Section 75 of the Civil Service Law, he was entitled to benefits [268 AD2d 707]. In considering this issue, the Board concluded that Fromer was an independent officer and, therefore, he was not entitled to limited tenure under Section 75. Fromer again appealed.

The Appellate Division again sustained the Board's determination, ruling that the protection afforded by Section 75 does not extend to those who hold “the position of private secretary, cashier or deputy of any official or department.” This listing, said the court, has been judicially interpreted to include independent officers, citing O'Day v Yeager, 308 NY 580.

Quoting from O'Day, the court commented that in determining whether a particular person is an independent officer, “[n]o automatic rule, no definitive signpost, is at hand, for it may fairly be said that each case must be decided upon its own facts.”

The court rejected Fromer's argument that because there was no statutory provision creating the position of general counsel for the Energy Office, there was no support for the Board's finding that he was an independent officer. It said that “[c]reation of the office by statute is a guide and not the sine qua non of whether a civil service position is independent.”

The Appellate Division said the record demonstrated that Fromer's position with the Energy Office was not that of a subordinate employee and that all of his duties and responsibilities required a high degree of initiative and independent thought and judgment.

Workers' Compensation Law benefits not available for “mental injury” resulting from an employer’s lawful personnel actions

Workers' Compensation Law benefits not available for “mental injury” resulting from an employer’s lawful personnel actions

Matter of Veeder v New York State Police Dept., 2011 NY Slip Op 05921, Appellate Division, Third Department

The widow of a Division of State Police forensic scientist, Donna Veeder, filed an application for workers' compensation death benefits, claiming that her husband became depressed and committed suicide as a result of actions she alleged were taken against him by the Division in the course of an investigation of her late husband’s performance of his duties.

The Workers' Compensation Law Board affirmed, concluding that Workers' Compensation Law §2(7)* barred the claim since the Division's actions were made in good faith and were the result of "a lawful personnel decision involving an investigation and potential disciplinary action."

Veeder appealed contending that that §2(7) was inapplicable because her husband had committed suicide and thus his injuries cannot be "solely mental."

The Appellate Division rejected this argument, explaining that “The unrefuted psychiatric evidence contained in the record, as well as the suicide letters, make clear that decedent's suicide was predominantly the product of the depression and stress he experienced from the employer's inquiry” into his performance of his duties. Accordingly, if work-related stress is not compensable under Workers' Compensation Law §2(7), “it necessarily follows that any physical injury that resulted therefrom cannot be compensable either.”

Considering Veeder’s argument that the Division’s actions in this case were not undertaken in the context of a "disciplinary action" within the meaning of the statute, the Appellate Division decided that Board's finding lacks substantial evidence in the record.

The court noted that there was “unequivocally” testimony that “there was no disciplinary action underway during the inquiry” and that the purpose of the meetings was to review the procedures employed by Veeder’s late husband “in conducting the testing and to look into ways for the laboratory to improve its testing methods.”

As the Board, having found the Division's actions to constitute a "disciplinary action" under Workers' Compensation Law §2(7), it did not reach the employer's alternative argument that its actions in that regard could also be deemed an evaluation of decedent's work under the statute, and that the stress experienced by decedent was no greater than that normally encountered in the work environment.

Accordingly, the Appellate Division vacated the Board’s determination and remanded the matter to it “for resolution of these issues.”

* Workers' Compensation Law §2(7) provides, in relevant part, that "[t]he terms 'injury' and 'personal injury' shall not include an injury which is solely mental and is based on workrelated stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer"

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05921.htm

Leave for religious holidays

Leave for religious holidays

Burns v The Warwick Valley CSD, USDC, SDNY, 166 F. Supp. 2d 881

Warwick Valley Central School District teachers sued the district contending that the district's policy of asking about the religious tenets of employees' religion before granting “personal leave” for religious observances was unconstitutional. The teachers asked federal district court Justice McMahon to bar the district from making such inquiries in the future.

According to the teachers, the district's “new policy” implementing a Taylor Law contract in connection with the use of personal leave for religious observances provided for the district to first inquire about “formal religious practices of an applicant's organized religion.” If the District saw no conflict between those practices and working hours, it then made an inquiry testing the sincerity of the teacher's beliefs.*

The court ruled that the teachers did not show that the district's policy is likely to cause them recurring injury, noting that the parties stipulated that the district has given teachers all the leave they have requested since the new policy was implemented. This, said the Federal District Court, meant that the teachers did not have standing to sue, and granted the district's motion for summary judgment.

* In Port Washington USFD v Port Washington TA, 268 A.D.2d 523, motion for leave to appeal denied, 95 N.Y.2d 761, the Appellate Division ruled that a Taylor Law contract provision allowing an individual to be absent on a religious holiday with pay without charging his or her absence to leave credits violates the First Amendment. 

Appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law

Appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law

Mennella v Uniondale UFSD, App. Div., 2nd Dept., 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602

This case arose when Vincenza Mennella attempted to obtain court approval to file a late notice of claim in order to sue the Uniondale Union Free School District to recover damages for alleged racial discrimination and “fraudulent inducement.”

Mennella was still in her first year of a three-year probationary period when the school board voted to terminate her employment as the Dean of Students at the Uniondale High School.

As a condition precedent to commencement of a legal action against a school district, Section 3813(1) of the Education Law requires that a written verified claim be presented to the governing body of the school district within three months of accrual of the claim. Such a notice of claim must provide the school district with information as to the nature of the claim, the time when, the place where, and the manner in which, the claim arose as well as the essential fact concerning the claim.

In the Mennella case, the Appellate Division decided that a petition filed with the Commissioner of Education may constitute the functional equivalent of a Section 3813(1) notice of claim.

According to the ruling, six days after the school district terminated Mennella's probationary employment, she filed a petition with the Commissioner of Education seeking review of that determination.

Mennella's petition to the Commissioner of Education included allegations that the acting principal made certain statements indicative of racial discrimination. In the proceedings before the Commissioner of Education, the school district asserted that the allegations of racial discrimination were “baseless”.

The Appellate Division said that the petition to the Commissioner of Education constituted the functional equivalent of a notice of claim with respect to the Mennella's allegations of racial discrimination.

Abolishing a full-time position in favor of two part-time positions and the Doctrine of Legislative Equivalency

Abolishing a full-time position in favor of two part-time positions and the Doctrine of Legislative Equivalency

Matter of Lamb v Town of Esopus, 35 AD3d 1004, 827 N.Y.S.2d 307

The Lamb case raised two issues addressed by the Appellate Division. The first is relatively common, dealing with the abolishment of a position. The second is relatively rare: a claim that the doctrine of legislative equivalency was not applied in this case.

The Town of Esopus abolished the full-time building department aide position held by Debra L. Lamb and established two part-time positions instead. Lamb sued, seeking a court order directing Esopus to reinstate her to her former position with back pay and benefits. Supreme Court dismissed Lamb’s petition and the Appellate Division affirmed the lower court’s action.

Esopus claimed that it restructured its building department to keep down costs and increase efficiency. This, it contended, required elimination of Lamb’s full-time position. The Town also argued that Lamb did not have any tenure status in her position, which was a position in the non-competitive class.

The Appellate Division said that once the Town came forward with prima facie evidence that Lamb was not entitled to Civil Service Law protection, the burden shifted to her to raise a triable issue of fact regarding her entitlement to such protection. This, said the court, she failed to do.

While Lamb had been employed the Town for a number of years and passed a civil service examination qualifying her for numerous clerical positions, she failed to present proof that she was employed in a noncompetitive class position for five continuous years, a threshold requirement for tenure in the position (see Civil Service Law §75 [c]).*

Further, said the court, even had Lamb enjoyed the benefits accorded non-competitive class employees by §75.1(c) the Town could eliminate her position for purposes of economy or efficiency. It was Lamb’s burden to demonstrate that the elimination of her position was motivated by bad faith or was a subterfuge. Her efforts to meet this burden by contending that the Town failed to prove any cost savings resulted from its reorganization of the building department and elimination of her full-time position was rejected by the court.

The Town, said the court, showed that the reorganization increased efficiency by permitting it to hire a full-time building inspector by “transferring the benefits previously provided to [Lamb's] position.” The Town also said that the hiring several part-time workers also allowed the department to be open an additional 16 hours per week and not close during the lunch hour, thus increasing public access to the office.

The Appellate Division said that Lamb failed to meet her burden of overcoming the Town’s bona fide reasons for eliminating her position.

Lamb also argued that the elimination of her position violated the doctrine of legislative equivalency. Under that doctrine, said the court, "a position created by a legislative act can only be abolished by a correlative legislative act,” citing Matter of Torre v County of Nassau, 86 NY2d 421 and other cases.

According to the decision, it appears that Lamb’s position was created in January 2001 by a resolution providing for the “appointment of officers and employees,” and the same full-time position was eliminated when the Town enacted a resolution providing for the “appointment of officers and employees” in January 2005. As the position was created and abolished by the same means, the court said that the Town had acted in accord with the principle of legislative equivalency.

* Civil Service Law Section 75.1(c) provides that “an employee holding a position in the non-competitive class other than a position designated in the rules of the state or municipal civil service commission as confidential** or requiring the performance of functions influencing policy, who since his last entry into service has completed at least five years of continuous service in the non-competitive class in a position or positions not so designated in the rules as confidential or requiring the performance of functions influencing policy….”

** N.B. “confidential” within the meaning of Section 75.1(c) is not the equivalent of  “confidential” as that term is used in Article 14 of the Civil Service Law; the Taylor Law.

Public employer may be liable for damages suffered as a result of negligent supervision and negligent retention of its employees

Public employer may be liable for damages suffered as a result of negligent supervision and negligent retention of its employees

Gray v Schenectady City School Dist., 2011 NY Slip Op 05925, Appellate Division, Third Department

One of the defendant in this action, Steven Raucci, was employed by the Schenectady City School District) as its director of facilities. Raucci, however, did not appeared in this action as “In April 2010, he was convicted of 18 felony counts, including several for conduct against plaintiffs and their property during the time when he was employed by [Schenectady City School District].”

The Grays’ complaint alleged Raucci and the school district inflicted intentional emotional distress. In addition, their compliant charged the school district with “negligent 

In this appeal the school district argued that Supreme Court should have dismissed the complaint with respect to it.

The Appellate Division agreed in part, noting that “a claim of intentional infliction of emotional distress” requires the plaintiff to allege more than conduct that causes inconvenience or embarrassment, even if such conduct continues for a protracted period of time. The complaint, said the court, must also allege that the defendant's conduct was "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and [was] utterly intolerable in a civilized community."

Although the court found that “Liberally construed,” the Grays’ allegations were sufficient to state a cause of action of intentional infliction of emotional distress against Raucci, the Appellate Division held that the school district’s “mere inaction after receiving complaints about Raucci's behavior” cannot be considered the type of extreme and outrageous conduct that is "utterly intolerable in a civilized community." Further, said the court, Schenectady could be held vicariously liable for Raucci’s tortious actions only if he committed them in furtherance of school district’s business and within the scope of his employment.

Thus, concluded the Appellate Division, Supreme Court should have granted the part of defendant's motion seeking dismissal of the first cause of action against it. 

Supreme Court, however, properly denied the part of the school district’s motion seeking to dismiss the causes of action alleging negligent supervision and negligent retention of Raucci. 

The Appellate Division explained that such claims require allegations that the school district knew or should have known of “its employee's propensity to engage in the conduct that caused the [Grays’] injuries, and that the alleged negligent supervision or retention [of Raucci] was a proximate cause of those injuries.” 

In this instance the Grays alleged that Raucci vandalized their property and threatened their personal safety. Such alleged conduct, said the court, certainly appears to fall outside the scope of his employment. Further, the Grays alleged that Raucci used the school district’s computers, material and personnel to harass and intimidate them and that, even after Schenectady was informed of Raucci's conduct targeting them, it failed to investigate or discipline him. 

The Appellate Division concluded that the complaint filed by the Grays “sufficiently alleged that [Schenectady’s] negligent supervision or retention of Raucci permitted him continued access to the means to carry out his actions, which caused [the Grays] injuries.” Accordingly, the Appellate Division ruled that Supreme Court “correctly refused to dismiss the second and third causes of action.” 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05925.htm

Only a governmental not-for-profit corporation’s records is subject to FOIL

Only a governmental not-for-profit corporation’s records is subject to FOIL

Matter of Rumore v Board of Educ. of City School Dist. of Buffalo, . 35 A.D.3d 1178

Philip Rumore, president of the Buffalo Teachers Federation, sought a court order directing the Board of Education of the City School District of Buffalo (Board) and the Education Innovation Consortium [EIC] to provide him with certain records and information pursuant to the Freedom of Information Law [FOIL] (Public Officers Law Article 6). The records sought included EIC’s salary and budgetary records.

Supreme Court granted Rumore’s petition in part by directing the Board to obtain those records from EIC and then to make them available to Rumore for copying. The Appellate Division disagreed and ruled that the lower court should have dismissed Rumore’s petition in its entirety.

The ruling points out that FOIL requires the disclosure of the records of an “agency”. The term “agency” is defined as "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature" (Public Officers Law §86 ).

Although a not-for-profit corporation may fall within the definition of an agency subject to FOIL if its purpose is governmental and it has the attributes of a public entity, here, said the court, the record demonstrated that EIC does not have those attributes.

Among the elements the court found persuasive in finding that EIC was not a governmental body were the following:

EIC's budget is not approved by any governmental agency;

EIC has a self-elected Board of Directors;

The School District has no authority to hire or discharge any employee of EIC;

EIC did not have offices in any District-owned building;

EIC provides services to the District on a fee-for-services basis; and

EIC provides services to other clients as well as the District

Thus, said the court, Supreme Court “erred in concluding that EIC is an agency subject to the mandates of FOIL.”

In addition, the Appellate Division said that it agreed with the arguments advanced by the Board and EIC that because the records sought by Rumore are not "kept, held, filed, produced or reproduced by, with or for" the District by EIC, they do not fall within the ambit of FOIL.

Presumption of work-connected heart attack for the purposes of Retirement and Social Security Law Section 363-a(1)

Presumption of work-connected heart attack for the purposes of Retirement and Social Security Law Section 363-a(1)

Tortorello v McCall, App. Div., 286 AD2d 841, Motion for leave to appeal denied, 97 NY2d 607

Roni Tortorello's husband, who was employed as a lieutenant in the Rockland County Sheriff's Department, collapsed at home after jogging earlier in the day and was pronounced dead at a hospital emergency room. The cause of death was listed as coronary occlusion due to coronary arteriosclerosis and thrombosis, with a prior myocardial infarction listed as a contributing condition.

The New York State Employees' Retirement System [ERS], concluding that Lt. Tortorello had not sustained an accident in service on the date of his death, rejected his widow's application for an accidental death benefit. ERS determined that Lt. Tortorello's death occurred at home on his day-off after jogging and thus was not the result of an accident sustained while in service.

Tortorello's widow sued, claiming that she was entitled to accidental death benefits because Section 557 of the Retirement and Social Security Law provides that “any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence”.

The Appellate Division disagreed with this theory, noting that the relevant statutory “heart presumption” clause provides that “any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence.” Accordingly, the “heart presumption” is a rebuttable presumption.

Here there was no medical evidence identifying any particular work-related incident as a possible cause of Lt. Tortorello coronary occlusion. Under these circumstances, and because it is not necessary that all possible accidental causes be disproved in order to rebut the statutory presumption, ERS could rationally focus on the day of Lt. Tortorello fatal cardiac event as the date of the presumptive accident. In effect, the court concluded that under the facts in this case, ERS had “rebutted the presumption.”

The court ruled that since the day on which he suffered the heart attack was a scheduled day off for Lt. Tortorello and as there was no evidence that he actually performed any of his police duties that day, ERS could rationally conclude that decedent did not sustain an accident in service on that day.

The Appellate Division commented that ERS has interpreted the “in service” requirement for an accidental death benefit as the equivalent of the “in service” requirement for accidental disability benefits ... and that it saw no basis to disturb that interpretation.

The court's conclusion: Tortorello's claim that the stress of late husband's duties caused or contributed to his disease of the heart and resulting coronary occlusion is unsupported by any medical evidence in the record. Further, risks inherent in her late husband's routine police duties are not accidental in nature.

In identical language, Retirement and Social Security Law Section 363-a(1) provides a “heart presumption” for firefighters. Presumably the court's rationale in deciding the Tortorello case would be applied in a similar situation involving a firefighter.

Evidence of pretext bars summary judgment of a Title VII complaint alleging unlawful discrimination because of race

Evidence of pretext bars summary judgment of a Title VII complaint alleging unlawful discrimination because of race

Curry v Menard, Inc., CA7, 00-4219, 270 F.3d. 473

Demonstrating that other employees of a different race were not subjected to the same disciplinary action for the same offense is sufficient to establish “pretext” for the purposes of Title VII.

Sylvia Curry, a black woman employed as a cashier at Menard's Sokie, Illinois store, complained that Menard Inc. had discharged her from her position because of her race.

Menard, on the other hand, said that Curry had been discharged in accordance with its “progressive discipline” policy after it found shortages in her cash receipts on three different occasions. The district court granted Menard's motion for summary judgment. The Court of Appeals overturned the lower court's ruling, noting that From January 1, 1997, to December 31, 1998, Curry was the only cashier to be suspended or terminated for violating the store's progressive discipline policy although the record shows that had the policy been strictly enforced sixteen other cashiers should have been suspended or terminated in that same time period.

The Circuit Court said that summary judgment is appropriate if there is no genuine issue as to any material fact. Under such circumstances the moving party is entitled to judgment as a matter of law. As Curry did not provide any direct evidence of discrimination because of her race, she had to prove a prima facie case of discrimination under the burden-shifting method. To establish a prima facie case of discrimination, Curry was required to show that:

1. She belongs to a protected class;

2. She performed her job according to Menard's legitimate expectations;

3. She suffered an adverse employment action; and

4. Similarly situated employees outside the protected class were treated more favorably.

A prima facie case creates a presumption of discrimination and shifts the burden to the employer to produce evidence of a legitimate, race-neutral reason for the adverse action taken against the employee. If the employer meets this burden, the plaintiff then has the burden of showing that the employer's stated “nondiscriminatory reason” is merely a pretext for discrimination.

Finding that Curry proved a prima facie case of unlawful discrimination, the court said that Menard contended that Curry was not meeting its legitimate performance expectations because she had accumulated three “cash drawer” violations. Arguing that it had dismissed Curry in accordance with its progressive discipline policy, Menard claimed it had shown that it had terminated Curry for nondiscriminatory reasons.

Curry, then, was required to show that Menard's explanation of its action was pretext for unlawful discrimination.

The Circuit Court decided that Curry had met this burden by establishing that two employees, Margaret Venetico and Anne Merurio, both non-black cashiers, had two or more cash discrepancies but were neither suspended nor terminated. The court decided that this was sufficient evidence of alleged pretext to survive Menard's motion for summary judgment.

The key element here was Curry's evidence that prior to, and after, the tenure of Michael Stanley as the manager of the store none of the cashiers who had discrepancies, including Curry, was disciplined under the company's “progressive discipline” policy. In contrast, while Stanley was the manager there were three employees who had cash shortages but only Curry was fired.

This, said the court, leaves a material question of fact of whether terminating Curry for breaching the policy was a pretext.

Accumulating tenure eligibility credit while serving as an “intern teacher” not authorized

Accumulating tenure eligibility credit while serving as an “intern teacher” not authorized

Matter of Berrios v Board of Educ. of Yonkers City School Dist., 2011 NY Slip Op 05804, Appellate Division, Second Department

The genesis of this case was the termination of Jesus Berrios by the Board of Education of the Yonkers City School District without a hearing. Berrios, contending that he had attained tenure in his position with the District by estoppel or acquiescence,*complained that the Board’s action violated his rights to due process as set out in Education Law §3020-a.

The thrust of Berrios’ argument was that he had “accumulate tenure credit” while teaching under “an intern teaching acquiesce certificate.” The Appellate Division rejected his theory, holding that in the absence of holding a valid teaching certificate, in contrast to being employed pursuant to an “intern certificate,” a teacher’s service could not be credited toward completion of a required probationary period.

The Appellate Division ruled that Berrios was terminated while serving as a probationary employee and such personnel may be terminated at any time during the probationary period without being given a reason and without a hearing.**

Another element in this case concerned so-called “Jarema Credit.”*** Noting that “[s]ervice as a substitute teacher does not constitute probationary service for purposes of obtaining tenure as a regular teacher,” the Appellate Division observed that the Court of Appeals had held that a substitute teacher's three-year probationary period can be reduced to one year if the individual is eligible for "Jarema" credit.

Where, however, a teacher has not served as a regular substitute in the year immediately preceding a probationary appointment, such service will not count towards Jarema credit. In addition, said the court, case law supported its conclusion that Jarema credit cannot be awarded to a regular substitute teacher who does not possess a valid New York State teacher's certificate.

The court explained that “[a]llowing a substitute teacher to accumulate tenure credit for time spent teaching pursuant to an intern certificate would mandate that a school board grant or deny tenure to that teacher before he or she obtained a valid teacher's certificate.”

Rejecting Berrios’ contention that he acquired tenure by estoppel, the Appellate Division noted that a contrary determination would discourage school districts from employing students authorized to teach pursuant to intern certificates, thereby depriving both the school districts and the teachers of that valuable experience.

In light of the foregoing, the Appellate Division decided that Supreme Court correctly determined that Berrios did not earn tenure by estoppel because his first year of teaching as a substitute pursuant to an intern certificate was not creditable toward tenure. Thus, the Supreme Court was correct in denying his the petition, and properly dismissed the proceeding.

* Tenure by estoppel or acquiesce results "when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term" [McManus v Bd. of Educ. of Hempstead UFSD, 87 NY2d 183].

** See Education Law §2509[1][a]; §3014[1] N.B. The summary termination of a probationer, however, will not be permitted if it is determined to have been for an unconstitutional or unlawful purpose or reason.

*** Typically referred to by the name of the bill's sponsor, then Assemblyman Stephen J. Jarema, Education Law §2573[1][a], in pertinent part, provides that “Teachers and all other members of the teaching staff, authorized by section twenty-five hundred fifty-four of this article, shall be appointed by the board of education, upon the recommendation of the superintendent of schools, for a probationary period of three years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years … the probationary period shall be limited to one year….”

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**** Prior to February 2, 2004, the entry-level certificate for classroom teachers were denominated "provisional" and are now denominated "initial."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05804.htm