Due process and dismissal from office

Due process and dismissal from office

Mtr. of Gill, Decisions of the Commissioner of Education, 14,785

The decision by the Commissioner of Education in the Gill case explains the rights of a member of a school board and the procedures to be followed in the event a school board decides to remove one of its members from office.

The Wyandanch Union Free School District Board of Education voted to remove one of its board members, Andrew Gill, from office because of his alleged "official misconduct1."* According to the Commissioner's ruling, to constitute grounds for removal pursuant to Section 1709(18), the "official misconduct" must clearly relate to a board member's performance of official duties, either because of the allegedly unauthorized exercise of the member's powers or the board member’s intentional failure to exercise those powers to the detriment of the school district

Among the charges filed against Gill were the following:

1. Gill disrupted board meetings;

2. Gill falsely stated that the roof of a school building was in danger of falling down in an interview to be aired on television;

3.Gill, while representing that he was acting on behalf of the board, threatened to use physical force and used obscene language against a taxpayer; and

4. Gill asked a parent to bring false charges of sexual misconduct against a district employee.

In the course of the proceedings, Gill and his attorney left the hearing. The board continued the hearing "in absentia," presenting "the remainder of its proof in [Gill's] absence."** Following this, the board deliberated, found Gill guilty of a number of the charges and then voted to remove him for official misconduct. Gill appealed his removal from the Board, contending that he was denied due process.

In his appeal to the Commissioner, Gill argued, among other things, that the board did not respond to his "discovery demands" and otherwise acted to frustrate his right to administrative due process. Addressing this aspect of his appeal, the Commissioner said Gill cited no statutory or constitutional right to formal discovery in a removal proceeding conducted pursuant to Section 1709(18).*** 

In the words of the Commissioner: As long as [Gill] receive adequate notice of the charges, due process is served. 

The board, on the other hand, contented that it had provided Gill with a full and fair hearing consistent with his right to administrative due process and that it had properly removed from office after finding him guilty of official misconduct. The board also argued that Gill could have attempted to refute the charges at the hearing but elected to voluntarily absent himself from the proceeding.

The Commissioner sustained the board decision to remove Gill from office. He said that Section 1709(18) permits the board of education of a union free school district, among other things, "[t]o remove any member of their board for official misconduct."

The individual whom the board seeks to remove must be served with written charges at least ten days before the hearing and the individual must be "allowed a full and fair opportunity to refute such charges before removal." The Commissioner concluded that "[o]n the record before me, I find that [Gill was] afforded sufficient due process to satisfy this standard.

The Commissioner also found that Gill was given "a full and fair opportunity to refute the charges" as well as the opportunity to cross-examine the witnesses, examine the board's documentary evidence, and introduce his own documentary evidence.

In response to Gill's argument that he did not an opportunity to question a number of the witnesses who testified, the Commissioner said that Gill did have such an opportunity but "but voluntarily forfeited it by leaving the hearing under protest." The Commissioner also found that there was nothing in the record to justify Gill's electing to leave the proceeding.

Based on the totality of the circumstances, the Commissioner said that he did not find the board's removal of Gill for official misconduct to be improper and directed the board to appoint a successor trustee to replace petitioner Gill.

Another issue raised by Gill concerned his allegation that the hearing was "improperly conducted in executive session" in violation of the Open Meetings Law. The Commissioner said that the court has exclusive jurisdiction over complaints alleging violations of the Open Meetings Law and thus such complaints may not be adjudicated in an appeal to the Commissioner.

Finally, there was a recusal issue with respect to one of the board member's participation in the hearing and adjudication process involving Burnett. The Commissioner that it was improper for Wyandanch board member Rodney Bordeaux to consider the charges filed against Burnett.

According to the decision, Bordeaux was facing criminal charges of assaulting Burnett at the time of the hearing. 

The pendency of these charges, said the Commissioner, is a sufficient basis for someone to conclude that Bordeaux was likely to have some bias insofar as Burnett was concerned. Accordingly, noted the Commissioner, Bordeaux should have disqualified himself from participating in the determination of the charges filed against Burnett. In effect, the Commissioner cautioned that it is important to avoid even the appearance of bias in such a situation.

* Samuel Burnett, another trustee, was served with similar charges, found guilty of official misconduct and removed from office. On appeal, which was consolidated with the Gill appeal, [Decisions of the Commissioner 14,785] the Commissioner found that although there was proof sufficient to find Burnett guilty of some of the charges filed against him, the Commissioner did not find sufficient proof to establish grounds to justify Burnett's removal from office for "official misconduct." He directed that Burnett be reinstated to his position with the board.

** From time to time an individual may decline to participate in a disciplinary hearing being conducted pursuant to Section 75 of the Civil Service Law or some similar statute. It is well settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold the hearing in absentia rather than merely proceed with the imposition of a penalty on the individual on the basis of his or her failure to appear at the hearing as scheduled 

*** Sometimes an individual will demand "a bill of particulars" requiring the appointing authority to set out the charges and specifications filed against the individual in greater detail. Although Education Law Section 3020-a.3c(iii)(C) provides an administrator or teacher with the right to demand a "bill of particulars" concerning the charges and specifications filed against him or her, no similar provision is included in Section 75 of the Civil Service Law. In some instances a Taylor Law agreement will contain a provision allowing the employee to demand a “bill of particulars” in the course of a disciplinary action.

Random search and employee privacy

Random search and employee privacy

US v Gonzales, CA9, 01-30059

May a government employee be required to submit to a random search by his or her employer and under what circumstances? These were the major issues in the Gonzales case. 

In the view the U.S. Circuit Court of Appeals, Ninth Circuit, government employees may be subjected to searches by a government employer, but the court must consider the strength of the employee's reasonable expectation of privacy, the justification for the government employer's search, and the scope of the search as it relates to the justification for the search, in order to determine whether the search is reasonable.

Alexander Gonzales was employed at a "post store" on a federal Air Force base. He was the target of a random search of employees as he left the store when a store detective asked him to let her look in his backpack. The store detective had no individualized suspicion that Mr. Gonzalez was stealing anything.

The store detective found four packages of spark plugs worth $3.75 each in the backpack. Although Gonzales told the store detective that he had purchased the spark plugs elsewhere, he ultimately pleaded guilty to larceny, reserving for appeal the district court's denial of his motion to suppress the evidence found in his backpack on the theory that it was the fruit of an unlawful search conducted in violation of the Fourth Amendment.

The Circuit Court said that, in the context of this case, the following applied:

1. The search was random, not based on individualized suspicion, for the purpose of deterring theft and apprehending employees who stole store items and was conducted pursuant to an established policy of the store.

2. Gonzalez signed or initialed a statement that store employees were subject to random searches when he started work and that he knew such random searches were store policy.

3. Although individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer, government employees' expectations of privacy at the workplace may be "reduced by virtue of actual office practices and procedures."

4. The government employer did not need probable cause to believe that an employee was stealing, but its search had to conform to the test of reasonableness.

Thus, said the court, Gonzalez's "expectation of privacy" was limited by his knowledge of the store's policy of searching its employees' belongings to deter theft and to apprehend thieves.

There are, said the court, still two test that must be satisfied in this type of situation in order to hold that the search was justified at its inception.

The first test applied by the court: Was there a legitimate reason for the search?

In this instance, the court ruled that "Prevention of theft is a legitimate justification for a search. It's hard to run a store if the employees walk out with the inventory."

The second test: Was the "search as actually conducted was reasonably related in scope to the circumstances which justified the interference."

As to this second test, the court said that unless there is evidence that the search went beyond the scope of its justification, there is no basis to conclude that such a search went beyond what was reasonable.

The Circuit Court concluded that an employer is entitled to search an employee for stolen merchandise, even though the search was on a random basis without reasonable suspicion, but only if the individual had clear notice before he or she ever came to work that he or she would be subject to just such a search, and the search did not go beyond the scope appropriate to looking for stolen merchandise.

In contrast, the Circuit Court observed that "[a]n employee on his first day who had not yet signed or learned of the store policy, let alone a customer who neither knew of nor consented to any policy of random searches, might be in a much stronger position to have a reasonable expectation of privacy deserving protection from such searches...." 

Exceptions to dismissal of improper practice charge must be timely served

Exceptions to dismissal of improper practice charge must be timely served
Mtr. of Fern Rudin-Moore and DC-37, PERB Case U-25423

The Board affirmed the Decision of the ALJ dismissing Rudin-Moore's improper practice charge alleging that DC-37 violated §209-a.2(c) of the Act, when a DC-37 representative failed to respond to her inquiries regarding the status of a grievance that she had asked him to file on her behalf. The Board dismissed the exceptions on procedural grounds, finding that they had not been timely served on the other parties. Rudin-Moore filed exceptions with the Board on February 6, 2006, however, her exceptions were never served on either DC-37 or the District. 

Failure to follow administrative procedures precludes judicial review

Failure to follow administrative procedures precludes judicial review

Miller v Nassau County, 297 A.D.2d 344

The Appellate Division, Second Department, dismissed the appeal filed by Benjetta Miller in her attempt to obtain judicial review of Nassau County's placing her and a number of other employees in positions at a "lower salary line."

The Miller ruling illustrates the difficulties confronting an individual seeking a court review of an administrative action if he or she fails to follow the controlling administrative or statutory procedures.

In Miller's case, the Appellate Division found that there were two problems that barred the courts from assuming jurisdiction to review Nassau's placing her on a "lower salary line":

1. Miller failed to exhaust her administrative remedies under the parties' collective bargaining agreement -- i.e., she failed to file a timely grievance; and

2. To the extent that the Miller's claims fall outside of the scope of the collective bargaining agreement, she failed to serve a notice of claim on the County as required by Section 50-e(1)(a) of the General Municipal Law. 

Concerning individuals subject to financial disclosure

Concerning individuals subject to financial disclosure

Suffolk County Ethics Commission v Neppell, 307 AD2d 961

When the Suffolk County Ethics Commission [SCEC] asked Thomas M. Neppell, Jr., the chair of the Brookhaven Town Republican Committee, to file a financial disclosure form with the SCEC pursuant to Section A30-10 of the Suffolk County Charter, Neppell refused to do so, contending that he was neither a county officer nor a county employee.

SCEC sued Neppell, contending that because he was an officer of a political party officer, the County Charter required him to file a financial disclosure with it.

Noting that Suffolk County's Code Section A30-10A(1), Financial Disclosure provides in part that:

Every candidate for countywide elected office or for member of the County Legislature and every political party officer shall file with the Suffolk County Ethics Commission an annual statement of financial disclosure containing the information and in the form set forth in Chapter 61 of the Suffolk County Code.

Justice Doyle said that although Neppell argues he is not an employee of the County of Suffolk and thus he is not required to file a financial disclosure form, his argument must fail.

Why? Because, the court explained, General Municipal Law Section [GML] 811(1)(b) clearly authorizes municipalities to require financial disclosure from "local political party officials" as if such officials were officers or employees of such county, city, town or village...."

As the County's Code Sections A30-8(c) A30-10A(1) "appropriately dovetail with and mirror" the relevant section of the GML and as Suffolk County "has appropriately chosen to exercise the power to require the completion and filing of the annual statement of financial disclosure" by a local political party official as if he were an officer or employee of the County of Suffolk, Neppell was required to file because:

The Suffolk County Ethics Commission has captured the spirit and intent and the worthy objective of General Municipal Law Section 800 et seq. that is honesty in government, in formulating its local laws with regard to financial disclosure, in a format harmonious and consistent with state law.

Justice Doyle concluded that Neppell, as Chairman of the Brookhaven Town Republican Committee, "is a political party officer (as defined in Section A30-8 of the Suffolk County Charter) and is required to file a financial disclosure form with the Commission ...."

[Click on http://longisland.newsday.com/data/pdfs/levy/Memo%20on%20Financial%20Disclosure%20requirements%20from%20Ed%20Dumas.pdf for a recent statement concerning financial disclosure by the Nassau County Chief Deputy County Executive.]

Free speech and whistle blowing

Free speech and whistle blowing

Brochu v City of Riviera Beach, 304 F.3d. 1144

The Brochu case interweaves allegations of the suppression of free speech, whistle blowing and retaliation into its fabric.

Steven Lobeck, a City of Riviera Beach police officer, sued the City police department for alleged reverse race discrimination in imposing discipline.

Subsequently, Edward Brochu, another City of Riviera Beach police officer sued the City alleging it had violated Title VII by retaliating against him because he testified against the City in the Lobeck litigation. As an example of such retaliation, Brochu alleged that he was transferred to a less desirable assignment, with significant changes in job duties and responsibilities.

Brochu also sued the City pursuant to 42 USC 1983, claiming that the City had violated his First Amendment rights to free speech because:

1.It had engaged in a pattern and practice of retaliating against employees who exercise their First Amendment rights; 

2.He had responded to a request to participate in an investigation into the City police department by the FBI; 

3.He had actively participated in the election campaigns of various reform candidates for the city council who had made campaign promises to clean up problems in the police department during his "off-hours;" and, 

4.He had met with others to discuss the problems in the police department and to formulate potential solutions.

Brochu alleged that his participation in "these anti-corruption activities" resulted in his being placed on administrative leave and his being subjected to conditions that were so intolerable that he had to resign from his position under circumstances that amounted to constructive discharge.

The jury awarded Brochu $2,000,finding that the City had retaliated against him for engaging in conduct protected by Title VII. Further, the jury awarded him an additional $450,000.00 on his First Amendment claim, finding that protected speech activity was a substantial and motivating factor for the City's decision to place him on administrative leave, an action that amounted to a constructive discharge.

The Circuit Court vacated the jury's determination, holding that Brochu did not prove his 42 USC 1983 claim because he was put on administrative leave for a valid reason that had nothing to do with any speech protected by the First Amendment.

Citing Rankin v McPherson, 483 US 378, the Circuit Court said that "[a]lthough it is well-established that an employer may not discharge a public employee in retaliation for the employee's exercise of his right to freedom of speech, that right is not absolute.

In such a type of case, said the court, "[t]he problem ... is to arrive at a balance between the interests of the [employee] as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees," quoting from Pickering v Board of Education, 391 US 563.

In the words of the Circuit Court:

We have no problem concluding that, under the case law, "speech activity concerning corruption and mismanagement of [a] Police Department and/or . . .support [of] candidates for the City Council" might be a matter of public concern. In this case, however, Brochu was not not merely "commenting upon matters of public concern," i.e., the alleged ineptitude of his superiors and/or the alleged corruption in the police department, nor was he merely publicly campaigning in favor of candidates he felt would support a reform agenda. Rather, he was a major player in the creation and dissemination of a virtually secret plan to overthrow the existing police administration and put himself and his friends in charge.

This, said the court, "was not the sort of public speech activity engaged in by an employee as a citizen who is protected by the First Amendment. This was back-room maneuvering by an employee as an employee which, even if tangentially related to the political process in Riviera Beach and even if motivated by a sincere desire to reform the police department, is not the sort of public discourse which the First Amendment was intended to protect."

The Circuit Court observed that if creating and disseminating such an overthrow plan somehow constituted protected speech, the issue was whether a First Amendment right to participate in that activity was outweighed by the employer's interests under the facts of this case. The court's conclusion:

A Pickering balancing analysis weighing Brochu's interest in engaging in protected activities against his employer's interest in "promoting the efficiency of the public services it performs through its employees" demonstrates that the City would have been entitled to judgment as a matter of law.

Why? Because, the court explained, "[a] police officer is considered "part of a quasi-military organization [and] [i]n a law enforcement agency, there is a heightened need for order, loyalty, morale and harmony, which affords a police department more latitude in responding to the speech of its officers than other government employers."

The Circuit Court concluded that "the secret plan created by Brochu was simply not protected speech activity [but] even if it were, its potential to cause havoc in the police department would ... definitively tip the Pickering balance in favor of the City."

The Circuit Court held that Riviera Beach was entitled to judgment as a matter of law and it was reversible error for the district court not to have granted that motion.

The Doctrine of Legislative Equivalency

The Doctrine of Legislative Equivalency

Babor v Nassau County Civil Service Commission, 297 A.D.2d 342

The doctrine of legislative equivalency, applied by the Court of Appeals in deciding the Torre case [Torre v County of Nassau, 86 NY2d 421, was also a key factor in the Babor case. The doctrine sets out the principle that a position created by a legislative act can be abolished only by a correlative legislative act. The Babor case concerned the abolishment of a number of positions by the Nassau County Commissioner of Health.

Marguerite Babor served as a Nassau County public health administrator. When the Nassau County Board of Supervisors adopted a budget reducing the Health Department's 1992 appropriation more than 20% below its appropriation for 1991, positions encumbered by Babor and other public health employees were abolished. This resulted in a number of layoffs.

Babor and other individuals sued the County and the Nassau County Civil Service Commission contending that their former positions had been abolished in bad faith. They also argued that their layoffs were in violation of Section 61.2 of the Civil Service Law as other employees were required to perform their former duties as "out-of-title" work.

Finally, they contended that the abolishment of their former positions violated the doctrine of legislative equivalency as only the legislature, which they claimed created their positions, could direct that they be abolished. In other words, they argued, a county administrator may not unilaterally abolish a position created by the legislature.

Supreme Court, Nassau County granted the County's motion for summary judgment and dismissed Babor's petition. The Appellate Division reversed that part of the Supreme Court's dismissal rejecting Babor's argument based on the doctrine of legislative equivalency and remitted the case to the lower court.

The Appellate Division said that while, on it face, Babor's petition presents an issue as to whether the doctrine of legislative equivalency was violated, the parties provide different interpretations of the documentary evidence relevant to making a determination concerning the issue. Therefore, said the court, the Supreme Court must resolve this aspect of the case. Accordingly, summarily dismissing this branch of their claim was improper and a trial was required to resolve the issues of fact involved.

In contrast, the Appellate Division ruled that the Supreme Court "properly dismissed" Babor's petition insofar as she sought reinstatement to her position based on allegations that the County acted in bad faith and violated Section 61.2 of the Civil Service Law by assigning out-of-title work to other employees. With respect to these aspects of Babor's petition the Appellate Division concluded that:

The County established its entitlement to summary judgment with respect to those claims, and [Babor] failed to present evidence sufficient to raise any triable issues of fact.

Refusal to administer civil service test to an applicant during pending litigation violated the individual’s First Amendment rights

Refusal to administer civil service test to an applicant during pending litigation violated the individual’s First Amendment rights

Lathrop v Onondaga County, USDC NDNY, 220 F. Supp. 2d 129

Charlene Lathrop enrolled in the Central New York Police Academy in 1997. She completed all of the course requirements except the "defensive tactics" portion of the program successfully. After she failed a "retest" for defensive tactics, the Academy told her she could be again retested within a year of her provisional appointment as a police officer with the Village of Marcellus.

Lathrop, however, had filed a human rights complaint against the Academy alleging discrimination because of her gender. Following its receipt of the complaint, the Academy's offer to again retest Lathrop was withdrawn by its director. Although Lathrop subsequently passed the defensive tactics portion of her training requirement, the State Division of Criminal Justice Services refused to certify her as a police officer because she had not passed the test within one year of her appointment to her police officer position.

Chief JudgeScullin ordered the Division to certify Lathrop as qualified for appointment as a police officer. Judge Scullin held that Lathrop's First Amendment rights were violated as a result of being denied any retest opportunities during the relevant year qualifying period in retaliation for her having filed a civil rights complaint against the Academy. In effect, said the court, the State refused to certify a police officer candidate who had not completed her testing within the required time period because it barred her from taking the test while her gender discrimination claim was pending.

Significantly, the decision notes that the Academy director had told Lathrop that she would not be tested because of the pending litigation she had initiated. This, in itself, said Judge Scullin, constituted a violation of Lathrop's First Amendment rights.

Further, the court noted that any delay in Lathrop's becoming fully qualified for employment as a police officer resulted from actions taken by the Academy rather than because of failure on her part to satisfy its requirements.

The relief directed by Judge Scullin: DCJS was ordered to issue a "certificate of completion" to Lathrop certifying that she had completed the basic course required for appointment as a police officer and thus met this requirement for such employment.

Emergency Rule filed by the New York State Department of Civil Service changes the ratio of the State and the State employee and State retirees contributions for health insurance premiums

Emergency Rule filed by the New York State Department of Civil Service changes the ratio of the State and the State employee and State retirees contributions for health insurance premiums

Source: “Provision of the Health Benefit Plan for Active and Retired New York State Employees,” Item CVS411100007E; State Register dated October 12, 2011

§167.1(a) of the Civil Service Law provides that the State is to pay 90 percent of the health insurance premium for individual coverage and 75 percent of the premium for dependent coverage. The Department of Civil Service has promulgated an Emergency Rule changing the ratio of the “employer/employee” contributions for health insurance for active and retired New York State Employees effective September 27, 2011 requiring active and retired individuals to pay a greater portion of the premium for their health insurance than is now set by law.

On October 20, 2011 the Retired Public Employees Association wrote NYS Civil Service Commission President Patricia Hite objecting to this emergency rule insofar as it changed the ratios of the “employer-retiree” contribution for health insurance premiums for now retired State employees and their dependents from those set out in §167.1(a) of the Civil Service Law.

RPEA contends that “Except as otherwise provided by an agreement between the State and an employee organization entered into pursuant to Article fourteen of the Civil Service Law [the Taylor Law], §167.1(a) requires the State to contribute nine-tenths of the cost of premiums or subscription charges for health insurance coverage of each such State employee or retired State employee and three-quarters of the cost of premium or subscription charges for the coverage of dependents of such State employees and retired State employee except as otherwise provided by §167.1(a).” No such agreement covers retired employees of the State as an employer.

The letter notes that §167.1(a) of the Civil Service Law has not been amended and that “It is well-settled that a State regulation should be upheld [only] if it has a rational basis and is not … contrary to the statute under which it was promulgated,” citing Kuppersmith v Dowling, 93 NY2d 90 [emphasis in the original].

RPEA points out that the Emergency Rule is “is contrary to the statute under which it was promulgated” because §167.1(a) currently provides that the State as the employer shall pay 90% of the health insurance premium for individual health insurance coverage and 75% of the health insurance premium for dependent health insurance coverage on behalf of its retirees.

In contrast, the Emergency Rule, in pertinent part, provides that with respect to State retirees who retired on or after January 1, 1983 and current employees of the State retiring prior to January 1, 2012, the State will contribute 88 percent of the premium for individual health insurance coverage and 73 percent of the premium for dependent coverage.

As to employees retiring on or after January 1, 2012 from a title allocated or equated to salary grade 9 or below, the Emergency Rule provides that the State will contribute 88 percent of the premium for individual coverage and 73 percent of the premium for dependent coverage while for employees retiring on or after January 1, 2012 from a title allocated or equated to salary grade 10 or above, the Emergency Rule provides that the State will contribute 84 percent of the premium for individual coverage and 69 percent of the premium for dependent coverage.

The full text of RPEA’s October 20, 2011 letter to President Hite is posted on the Internet at:

http://rpea.org/documents/commentsobjectEmergRule-10-20-11-2.pdf

Personal interests not protected by the Taylor Law

Personal interests not protected by the Taylor Law

Westhampton Beach Police PBA and Village of Westhampton Beach, 35 PERB 3026

An employee making complaints unrelated to any specific provision in the collective bargaining agreement and that essentially concern matters of private, personal interest, has not established any basis for prosecuting a claim that he or she was subjected to adverse personnel action because of his or her engaging in a protected activity within the meaning of the Taylor Law. 

Timely notice of claim as a condition precedent to maintaining a lawsuit

Timely notice of claim as a condition precedent to maintaining a lawsuit

Delle v Kampe, 296 AD2d 498

In the Delle case, the Appellate Division, Second Department, was asked to determine if James R. Delle's failure to file a timely Notice of Claim precluded his maintaining his Article 78 action challenging the Nassau County Civil Service Commission's refusal to reinstate his name on an eligible list.

Supreme Court had dismissed Delle's petition on the grounds that he had failed to serve a notice of claim on the County. In the words of the Appellate Division:

[Delle's] request for relief "presents the classic formulation of an Article 78 proceeding and `whether the determination was made in violation of lawful procedure, was affected by error of law or was arbitrary and capricious or an abuse of discretion'"

The Appellate Division said that this type of action does not require that the aggrieved individual file a timely notice of claim or be barred from proceeding with his lawsuit.

As authority for its ruling the court cited Piaggone v Floral Park-Bellrose Union Free School District, 92 AD2d 106, in which the Appellate Division ruled that "a notice of claim is not a condition precedent to a special proceeding properly brought pursuant to CPLR Article 78 seeking either judicial enforcement of [a] duty or judicial review of a prior adjudication by an administrative agency."

In another late "notice of claim" case, Taha v City of New York [New York State Supreme Court, Ia Part 5] Justice Stallman allowed a police officer who was assigned to the World Trade Center site from September 13, 2001 until December 2, 2001 and again on December 17, 2001 to file a late notice of claim. Taha alleged that the City did not provide her with proper respiratory gear and that she developed lung damage and breathing problems as a result.

Justice Stallman held that the City was aware that similar claims had been filed by police officers, firefighters and others as a result of their being involved in 9/11 activities. Accordingly, said the court, neither the defenses of "surprise" nor that it would be "substantially prejudiced" because of the delay in being notified of the claim were available to the City in situations where the individual had a reasonable excuse for failing to comply with the notice requirements set out in General Municipal Law §50-e.

In the words of the court:

... in light of the intensive media coverage and investigations at all levels of government including City agencies, the City cannot contend it did not know of the environmental conditions at the World Trade Center site or the equipment it issued to its own personnel.

Duty of fair representation

Duty of fair representation

Matter of Bruns and Council 82, 35 PERB 2023

Unit member's dissatisfaction with his or her representation by the union in a grievance that resulted in a negotiated settlement rather than proceeding to arbitration, did not, without more, establish a prima facie case that the union breached its duty of fair representation as a member's "disagreement with the tactics utilized or his or her dissatisfaction with the quality and extent of representation" does not constitute a breach of the union's duty of fair representation. 

Decisions of interest concerning Labor and Employment Law

Decisions of interest concerning Labor and Employment Law
Source: Justia October 21, 2011

 

Velazquez-Rodriguez v. Municipality of San Juan

Court: U.S. 1st Circuit Court of Appeals

Docket: 09-1769

October 20, 2011

Judge: Thompson

Areas of Law: Civil Rights, Labor & Employment Law

Plaintiff, a former municipal employee, claimed that he was harassed and terminated for political reasons. The district court dismissed his suit, alleging various claims under 42 U.S.C. 1983. The First Circuit affirmed in part, but vacated with respect to claims of political discrimination and free-speech retaliation against the mayor and municipality as involving unresolved issues of fact.

http://j.st/pzp

Bonefont-Igaravidez v. Int'l Shipping Corp.

Court: U.S. 1st Circuit Court of Appeals

Docket: 10-1953

October 14, 2011

Judge: Howard

Areas of Law: Labor & Employment Law

Plaintiff worked for defendant, primarily as a stevedore, for 57 years. In 2006-2007, he missed several months of work due to physical ailments and received disability benefits. Plaintiff claims that when he returned to work, his colleagues insulted his age and medical conditions, often in the presence of supervisors. Plaintiff, then age 71, was first suspended, then terminated, after the company's human resources department was informed that he had assaulted his supervisor (also more than 60 years old). In a case under the Discrimination in Employment Act, 29 U.S.C. 621-634, the district court entered summary judgment in favor of the employer. The First Circuit affirmed, finding no evidence of age bias.

http://j.st/p7u

Griffin, Sr. v. United Parcel Service, Inc.

Court: U.S. 5th Circuit Court of Appeals

Docket: 10-30854

October 19, 2011

Judge: Stewart

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Plaintiff brought suit under the Americans with Disabilities Act (ADA), 42 U.S.C. 12102, against defendant for failing to provide a reasonable employment accommodation in consideration of his diabetes. The district court entered summary judgment in favor of defendant. The court held that because plaintiff's diabetes treatment regiment required only modest dietary and lifestyle changes, no genuine issue existed as to whether his impairment substantially limited his eating. Therefore, the district court properly concluded that plaintiff was not disabled within the meaning of the ADA. The court also held that, based upon the record evidence, no reasonable juror could conclude that defendant was unwilling to, in good faith, participate in an interactive process to reasonably accommodate plaintiff's needs. Accordingly, the judgment was affirmed.

http://j.st/pDR

Barton v. Zimmer, Inc.

Court: U.S. 7th Circuit Court of Appeals

Docket: 10-2212

October 18, 2011

Judge: SYKES

Areas of Law: Labor & Employment Law

In 2004 plaintiff began working with a new supervisor,who removed many of plaintiff's job duties because he thought plaintiff, age 57, was too old. Plaintiff complained to the vice president of the company and the Equal Employment Opportunity Commission. The vice president investigated and eventually fired the supervisor. In the meantime, plaintiff took leave, under the Family Medical Leave Act, 29 U.S.C. 2601. When he returned, a new supervisor assigned plaintiff to revamp a training class. Plaintiff suffered a psychological breakdown, exhausted his disability leave, and retired. He sued for discrimination and retaliation (Age Discrimination in Employment Act, 29 U.S.C. 621) and for interference with reinstatement under the FMLA. The district court granted summary judgment for the employer. The Seventh Circuit affirmed. Although the evidence, viewed in plaintiff's favor, established that the 2004 supervisor discriminated against him because of age, the ADEA provides no remedy because the discrimination did not cause any loss and was not linked to the disability that precipitated early retirement. There was no evidence of retaliation based on plaintiff's complaining about discrimination. There was no claim under the FMLA because when plaintiff returned to work after medical leave, the company assigned him equivalent duties without regard to his medical leave.

http://j.st/pLn

Palka v. City of Chicago

Court: U.S. 7th Circuit Court of Appeals

Docket: 09-2042

October 18, 2011

Judge: SYKES

Areas of Law: Civil Rights, Labor & Employment Law

Plaintiff was terminated as a probationary police officer. A supervisor stated that plaintiff violated departmental rules by revealing confidential information to another recruit during a training exercise, repeatedly failed to pass the firearms qualifying test, and admitted not reading the firearms manual (another rules violation). Plaintiff's father, then a deputy sheriff, argued for his son's reinstatement. Believing that the father had placed a threatening call to a school attended by the supervisor's children, the supervisor filed a complaint that resulted in a recommendation of termination and the father's early retirement. The father's suit under 42 U.S.C 1983 was dismissed; the Seventh Circuit affirmed. Plaintiff's (son) suit, alleging bias based on his Polish ethnicity was also rejected by the district court. While both suits were proceeding, father and son pursued administrative remedies before the Equal Employment Opportunity Commission, obtained right-to-sue letters, and jointly filed a suit under Title VII, 42 U.S.C. 200e. The district court dismissed, citing res judicata. The Seventh Circuit affirmed.

http://j.st/pLs

Shaffer v. Am. Med. Ass'n

Court: U.S. 7th Circuit Court of Appeals

Docket: 10-2117

October 18, 2011

Judge: WILLIAMS

Areas of Law: Health Law, Labor & Employment Law

Plaintiff had previously worked for the employer before being hired as a full-time employee in 2005. When budget cuts necessitated layoffs, plaintiff thought his job was secure until he requested leave for surgery and was let go. The district court entered summary judgment for employer on claims under the Family and Medical Leave Act, which guarantees employees 12 workweeks of leave for serious health conditions, including the knee surgery plaintiff had, 29 U.S.C. 2612(a)(1). The Seventh Circuit reversed. Because there was evidence from which a jury could infer that termination was based on the leave request, summary judgment was inappropriate. A memo made by a supervisor, for purposes of discussing the termination with the employer's attorney, did not fit within the crime-fraud exception and is protected by attorney-client privilege.

http://j.st/pLg

Sanchez v. Northwest Airlines, Inc., et al.

Court: U.S. 8th Circuit Court of Appeals

Docket: 10-2393

October 14, 2011

Judge: Bye

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Plaintiff brought a claim under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12213, alleging that his employer engaged in prohibited discrimination by rescinding his offer of promotion on the basis of his perceived limitations. The employer moved for summary judgment, contending, in part, that plaintiff's claim was discharged in the company's Chapter 11 bankruptcy, which had concluded two months after rescission of plaintiff's offer. The district court held that plaintiff's ADA claim was discharged by virtue of his failure to submit a request for payment by the bar date for the majority of administrative expense claims. The court found that plaintiff's claim fit squarely within the definition of liabilities incurred in the ordinary course of business. Therefore, the court held that because plaintiff was not required to file a request for payment of an administrative expense at all, the judgment in favor of the employer was reversed and the case remanded for further proceedings.

http://j.st/p74

Freeman v. Astrue

Court: U.S. 10th Circuit Court of Appeals

Docket: 11-5017

October 14, 2011

Judge: Murphy

Areas of Law: Labor & Employment Law, Public Benefits

Petitioner Theresa Freeman appealed the denial of her applications for social security disability insurance benefits and supplemental security income benefits. Petitioner applied for benefits in June 2007, alleging she was unable to work as the result of obesity and an on-the-job back injury that had occurred in February 2007. Her applications were denied at the administrative level, on reconsideration, and after a hearing before an administrative law judge (ALJ). The ALJ found that Petitioner's degenerative disk disease and obesity were severe impairments, but that none of her impairments, either alone or in combination, met or equaled one of the listings. Furthermore, the ALJ found that Petitioner had "the residual functional capacity to perform less than the full range of light work." After the Appeals Council denied her request for review, Petitioner filed her complaint in district court, and a magistrate judge affirmed the Commissioner's denial of benefits. Upon review, the Tenth Circuit concluded that Petitioner wanted the Court to "reweigh the evidence or substitute [the Court's] judgment for that of the Commissioner" which the Court declined to do. Accordingly the Court affirmed the Commissioner's decision to deny Petitioner's benefits.

http://j.st/p6p

Lucas v. Liberty Life Assurance Company

Court: U.S. 10th Circuit Court of Appeals

Docket: 11-6056

October 14, 2011

Judge: Gorsuch

Areas of Law: ERISA, Injury Law, Insurance Law, Labor & Employment Law

Plaintiff Steven Lucas filed suit against Liberty Life Assurance Company of Boston (Liberty Life), asserting that the company violated the Employee Retirement Income Security Act of 1974 (ERISA) when it denied his claim for long term disability benefits. Finding that the denial of benefits was not arbitrary and capricious, the district court entered judgment in favor of Liberty Life. Plaintiff appealed the district court's decision. Plaintiff was an employee of the Coca-Cola Company. Liberty Life both administered and insured Coca-Cola's long-term disability benefits plan. Under the plan, it has discretionary authority to determine eligibility for benefits. Plaintiff suffered a work-related injury requiring spinal surgery and, after a short period back on the job, stopped working. He filed a claim for long-term disability benefits in August 2005. In September 2007, Liberty Life terminated Plaintiff's benefits after determining that he was not eligible for continued benefits under the "any occupation" provision: while he might not be capable of performing his own occupation, he was capable of performing some occupation comparable to his former position. Plaintiff filed an administrative appeal with Liberty Life, but the company upheld the denial of benefits. Upon review, the Tenth Circuit concluded that Liberty Life's decision was supported by substantial evidence, and that Plaintiff failed to show that it was arbitrary and capricious. Accordingly, the Court affirmed the district court's decision.

http://j.st/p6q

Ford-Clifton v. Dep't of Veterans' Affairs

Court: U.S. Federal Circuit Court of Appeals

Docket: 11-3103

October 19, 2011

Judge: Reyna

Areas of Law: Government & Administrative Law, Labor & Employment Law

Plaintiff, employed by the federal government for almost 30 years, appealed from termination of her position with the VA. During her last months on the job she suffered depression and high blood pressure. The parties entered into a settlement in which plaintiff agreed to withdraw her appeal and forego all claims against the VA. An ALJ dismissed the appeal as settled. The March 2009 decision became final in April 2009. In November 2009, plaintiff filed a new appeal, seeking reinstatement. The appeal was docketed as a petition to enforce the agreement, but without allegation of noncompliance. The ALJ dismissed. The Board, unable to determine whether plaintiff's filing was an untimely appeal of the March decision or any basis for appeal, affirmed. The Federal Circuit affirmed. Plaintiff failed to show good cause for her untimely filing of the November 2009 appeal and the March 2009 decision implementing the agreement operated as a res judicata bar.

http://j.st/pEg

CSX Transportation, Inc. v. Smith

Court: Georgia Supreme Court

Docket: S11G0556

October 17, 2011

Judge: Carley

Areas of Law: Injury Law, Labor & Employment Law

Plaintiff brought a slip and fall action against CSX under the Federal Employers' Liability Act (FELA), 45 U.S.C. 51 et seq., which provided a federal tort remedy for interstate railroad employees who were injured while working within the scope of their employment. At issue was whether 29 C.F.R. 1910.24(f) applied to an indoor office building and whether the trial court erred in allowing the jury to hear evidence of, and determine whether, plaintiff was out of service because he was within the broad scope of protection of the FELA. The court held that, because the requirement of section 1910.24(f) that the nosings be of nonslip finish was applicable to the stairs in CSX's office building, was raised by the evidence, and was not otherwise covered in the jury instructions, the trial court should have given plaintiff's request to charge the jury that it could consider a violation of that regulation as evidence of negligence on the part of CSX. The court also held that because the circumstances surrounding plaintiff's dispute with the supervisors a few hours before he went to CSX's administration building to attend the safety meeting were at least indirectly material to matters at issue in this case, including whether plaintiff was acting within the cope of his employment at the time of his fall, the trial court did not abuse its discretion in allowing CSX to cross-examine plaintiff on the issue and in admitting the testimony of supervisors for purposes of disproving certain facts to which plaintiff had testified.

http://j.st/p2W

Gottus v. Job Service North Dakota

Court: North Dakota Supreme Court

Docket: 20110127

October 18, 2011

Judge: Maring

Areas of Law: Government & Administrative Law, Labor & Employment Law, Public Benefits

Petitioner Wanda Gottus appealed a district court judgment that affirmed a decision of Job Service North Dakota denying her unemployment benefits and concluding she was discharged for actions constituting misconduct. In January 2008, Petitioner began working as a cashier for Service Oil Inc. d/b/a Stamart. In addition to acting as a cashier, Petitioner's job duties included attending to the store's shelves, light cleaning, and other similar tasks. Petitioner's employment with Stamart ended in August 2010 when she was discharged for poor job performance. Petitioner subsequently filed for unemployment insurance benefits. Job Service initially approved Petitioner for unemployment benefits indicating she was not discharged for misconduct. Stamart appealed this decision, and a telephone hearing was held before an appeals referee. Testimony and evidence presented during the hearing revealed there were at least sixteen instances when Petitioner's job performance fell below the level expected of Stamart employees. The Job Service reviewed the record and affirmed the referee's decision. Petitioner argued on appeal her job performance was merely unsatisfactory but did not constitute misconduct. The district court rejected her argument and affirmed Job Service's decision. The Supreme Court concluded Job Service's findings of fact were supported by a preponderance of the evidence, and its conclusion that Petitioner's actions constituted disqualifying misconduct was supported by the findings.

http://j.st/pRA

State ex rel. Baroni v. Colletti

Court: Ohio Supreme Court

Docket: 2011-0455

October 19, 2011

Judge: Per Curiam

Areas of Law: Injury Law, Labor & Employment Law

Employee was involuntarily separated from his employment due to disability. Employee's treating physician later certified that Employee was able to return to work, and Employee was subsequently reinstated to the payroll by Employer. Employee appealed the reinstatement order to the extent that the order did not award him back pay or credit his vacation leave from the date his treating physician certified that he could return to work to the day before he was returned to the payroll. The State Personnel Board of Review dismissed Employee's administrative appeal for lack of jurisdiction. Employee then filed a complaint for a writ of mandamus to compel Employer to remit back pay or restore vacation-leave credit. The court of appeals dismissed Employee's complaint. The Supreme Court affirmed, holding that neither Ohio Rev. Code 124.32 nor Ohio Adm. Code 123:1-30-04 required that Employer remit back pay or credit the vacation leave Employee used between the date Employee's treating physician certified that he could return to work to the day before he was returned to the payroll.

http://j.st/pzT

City of Scranton v. Firefighters Local Union

Court: Pennsylvania Supreme Court

Docket: 60, of the International Assocation of Fire Fighters, AFL-CIO, Aplt - Nos. 35 - 38 MAP 2010

October 19, 2011

Judge: Saylor

Areas of Law: Arbitration & Mediation, Constitutional Law, Government & Administrative Law, Labor & Employment Law

Consolidating several appeals, the Supreme Court addressed the effect of a municipality's financial distress and recovery planning on an arbitration award agreed to pursuant to the Policemen and Firemen Collective Bargaining Act (Act). For approximately twenty years, the City of Scranton has been designated a distressed municipality under the Municipalities Financial Recovery Act. Pursuant to the Recovery Act, the City has its Commonwealth-mandated financial advisors who assist in creating a financial recovery plan (essentially a budget). In the most recent collective bargaining agreements between the City of Scranton and its Police and Firefighter Unions expired at the close of 2002. Negotiations as to future terms and work conditions for union members resulted in impasses. Accordingly, pursuant to the Act, arbitrators were selected to establish appropriate terms and conditions. Throughout the arbitrations, the City maintained that the arbitrators lacked legal authority to award relief impinging on the City's financial recovery plan. The City attempted to resist paying the ensuing award that resulted from the arbitration. The Commonwealth Court found that it was required to vacate the awards, holding that they did not conform to the City's Recovery Plan and would result in increased financial and operational burdens on an already distressed municipality. The Unions appealed to the Supreme Court. The Court focused on the distinction between the terms "arbitration award" and "arbitration settlement": the City argued that it was not mandated to pay "awards" but "settlements." The Supreme Court found the term "settlement" ambiguous, and the plain meaning could include the "award" given by the arbitrators in this case. Accordingly, the Court reversed the Commonwealth Court's order that the award negatively impacted the City's Recovery Plan.

http://j.st/pzC

City of Philadelphia v. Workers' Comp. Appeal Bd.

Court: Pennsylvania Supreme Court

Docket: 49 EAP 2010

October 19, 2011

Judge: Orie Melvin

Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law

At issue before the Supreme Court was whether an opinion rendered by a medical expert was sufficient to rebut the presumption of disease causation under the Pennsylvania Workers' Compensation Act. Joseph Kriebel worked for the City of Philadelphia as a firefighter from 1974 to 2003. He died in 2004 from liver disease caused by hepatitis C. His widow Appellant Patricia Kriebel, filed a claim petition under the Act in 2005, alleging that her husband contracted hepatitis C in the course of his employment. Appellant sought to raise the presumption of occupational exposure. In support of her claim, Appellant presented the testimony of her husband's treating physician. The City rebutted the presumption of disease causation with testimony of its own medical expert. Upon review, the Supreme Court held that an expert's opinion does not constitute substantial competent evidence where it is based on a series of assumptions that lack the necessary factual predicate. Since the medical opinions in this case were based on unfounded suppositions, they were legally insufficient to overcome the presumption of disease causation. The Supreme Court reversed the Commonwealth Court that held that the City overcame the presumption with its' medical expert's testimony, and reinstated the order of the superior court which held in favor of Appellant.

http://j.st/pzj

Majors v. Randstad Inhouse Servs., L.P.

Court: Tennessee Supreme Court

Docket: M2010-01975-SC-WCM-WC

October 19, 2011

Judge: Anderson

Areas of Law: Injury Law, Insurance Law, Labor & Employment Law

In this workers' compensation case, Employee was operating a torque gun, which jerked and twisted her right hand while at work. Employee contended that her injury extended into her arm. Employer agreed the injury was compensable but argued that the injury was limited to Employee's index finger. The trial court found that Employee's injury was properly apportioned to her right arm, rather than to her hand or finger, and awarded seventy percent permanent partial disability (PPD) to the right arm. Employer appealed, arguing that the trial court erred by apportioning the injury to the arm and that the award of PPD benefits was excessive. The Supreme Court Special Workers' Compensation Appeals Panel affirmed, holding (1) the evidence did not preponderate against the trial court's decision to apportion Employee's injury to the arm; and (2) the evidence supported the trial court's award of disability benefits.

http://j.st/pzi