­­­­­­­­­­­­­­­­­­­­Employee terminated after being found guilty of off-duty misconduct

­­­­­­­­­­­­­­­­­­­­Employee terminated after being found guilty of off-duty misconduct
Losada v Safir, 278 A.D.2d 59

The Appellate Division sustained the disciplinary termination of New York City police officer Fernando Losada based on a finding that Losada, while off-duty, was in a traffic-related altercation during which he "wrongfully punched and kicked the driver of the other vehicle, causing him physical injury."

Another element: Losada was found guilty of filing a criminal complaint regarding the incident "that falsely portrayed the other driver as the aggressor, which resulted in the other driver being arrested and placed in detention."

The court said that the penalty of dismissal does not shock its sense of fairness, particularly given that this was Losada's second adjudication of violent misconduct within 16 months.

Employee terminated after failing to follow the employer's policy denied unemployment insurance benefits

Employee terminated after failing to follow the employer's policy denied unemployment insurance benefits
Matter of Cruz , 288 A.D.2d 813

Angel Cruz was dismissed from his position of Director of Public Safety and Security at the City University's Queens College campus. The reason for his termination: he failed to report allegations of sexual harassment made against members of his staff to the Colle­ge's Sexual Harassment Panel. The College's policy required supervisors to report such incidents to the Panel.

The Unemployment Insurance Appeal Board subsequently rejected Cruz's claim for unemployment insurance benefits after finding that he was discharged for "disqualifying misconduct."

The Appellate Division affirmed the Board's ruling, holding that "[i]t is well settled that a claimant's knowing failure to comply with the employer's established policies and pro­cedures can constitute disqualifying misconduct, especially in cases where such failure could jeopardize the employer's best interest."

According to the decision, Cruz admitted that he had twice failed to report allegations of sexual harassment that had been filed against members of his staff. His failure to do so, said the court, prevented the College from taking prompt action to address the allegations, thereby exposing it to potential liability.

Under these circumstances, the Appellate Division said that there was "no reason to dis­turb the decision of the Board finding that [Cruz] lost his job under disqualifying circum­stances."

Former employee’s ADA retaliation claim survives the dismissal of her violation of the ADA complaint

Former employee’s ADA retaliation claim survives the dismissal of her violation of the ADA complaint
Ragusa v Malverne Union Free School Dist., USCA, 2nd Circuit, No. 08-5367-cv, June 21, 2010, [Unpublished]

Malverne Union Free School District mathematics teacher Biljana Ragusa sued the District, the school board and former school superintendent Mary Ellen Freeley, alleging that she had been the victim of unlawful discrimination because of her gender, age, and disability.

A federal district court judge granted the School Districts motion for summary judgment [Ragusa v. Malverne Union Free Sch. Dist., 582 F. Supp. 2d 326], finding that Ragusa failed to adduce sufficient evidence to permit a rational factfinder to conclude that she was disabled within the meaning of the ADA, that she had been subjected to a hostile work environment because of disability or that the district had retaliated against her because of her “engaging in ADA-protected activity.”

The Circuit Court sustained the district court’s ruling in part, stating that agreed with its finding that “Ragusa’s discrimination claim failed because of insufficient evidence that she is a ‘qualified individual’ with a ‘disability’ within the meaning of the ADA.”*

Ragusa had alleged that surgery to remove a benign brain tumor left her impaired in the “major life activities” of seeing, hearing, speaking, and walking.” The court, however, ruled that the evidence did not support a finding of “substantial limitation” and that the only medical evidence in the record consisted of a physician’s note clearing Ragusa to return to work following her surgery.

Further, said the court, Ragusa failed to raise a “jury question” as to whether the school district and its officers and employees “regarded her as disabled” because of an impairment that substantially limited a major life activity.

Although Ragusa contended that she received critical evaluations concerning her teaching performance, the Circuit Court decided that such criticisms reflected that the district considered her “ineffective” and not disabled.

As to Ragusa’s allegations concerning “retaliation,” the court ruled that although she presented a prima facie case of retaliation, the school district rebutted this claim by providing a non-retaliatory rationale” for her dismissal, thereby shifting the burden of going forward to Ragusa to show that the explanation offered by the district was pretextual.**

The Circuit Court concluded that Ragusa had sufficiently demonstrated the possibility of “pretext” with respect to her 2004-2005 teaching assignment and vacated the district court’s decision dismissing her claim of retaliation and remanded the matter to the federal district court for further consideration.

* The Circuit Court noted that Congress amended the ADA in 2008 to expand its coverage but said that it had decided the case on the version of the statute in effect “during the time period at issue, which ended with Ragusa’s termination on June 30, 2005, noting that, in general, a statute “shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication,” citing Bercerril v Pima County Assessor’s Office, 587 F3d 1162.

** Ragusa did not have to be disabled within the meaning of the ADA to pursue her retaliation claim as she demonstrated that she held a “good faith, reasonable belief that the underlying actions of the employer violated the ADA [see Sarno v Douglas Elliman-Gibbons and Ives, Inc., 183 F3d 155].

The decision has been posted on the Internet by the NYS Bar Association at:
http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9639670