At-will employee’s claims of wrongful termination and defamation rejected by court

At-will employee’s claims of wrongful termination and defamation rejected by court
DiLacio v New York City Dist. Council of United Bhd. of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department

George DiLacio, Jr., sued the United Brotherhood alleging “wrongful termination of employment and defamation” when it included the phrase “severe dereliction of duty” in the letter it sent to him terminating his employment.

The Appellate Division rejected DiLacio’s allegations, noting that because he was “an employee at will,” his argument that the Brotherhood violated its duty to terminate his employment "only in good faith and with fair dealing" failed to state a valid cause of action under New York law.

Under New York law, said the court, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired."

The Appellate Division also rejected DiLacio’s claim of defamation, explaining that although the letter advising him of his termination contained the phrase "severe dereliction of duty," the letter had not “been published” to anyone other than DiLacio himself.

NYPPL Comments: In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.

As the court found that that there was no “contemporaneous public announcement” of the Brotherhood's statement, presumably DiLacio did not have a right to demand a “name-clearing hearing.” [See, also, Sassaman v Brant, 70 AD3d 1026, a lawsuit triggered by an employee's complaint to a superior concerning a co-worker’s conduct, summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2010/03/employees-memorandum-to-her-superior.html ].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00175.htm

Federal Court sustains employer application for employee’s involuntary retirement for disability

Federal Court sustains employer application for employee’s involuntary retirement for disability
Campbell v City of New York, USDC, SDNY

Jonathan Campbell, claiming that the City of New York deprived him of liberty and property without due process of law in violation of his Fourteenth Amendment rights and his civil rights under 42 USC 1983 when it found him mentally incapacitated and involuntarily retiring him from his position as a New York City Transit Authority [NYCTA] police officer, sued the City and the New York City Employees’ Retirement System.

Campbell’s personnel file revealed that during his employment, disciplinary charges were filed against him about a dozen times alleging misconduct such as insubordination, taking unauthorized leave, reporting late for duty, using ethnic slurs, and failing to appear for hearings.

Claiming he was suffering from stress and emotional problems, Campbell requested and was granted multiple medical leaves. He was admitted to the Hillside Hospital’s psychiatric division and his private psychotherapist diagnosed him as having an Impulsive Behavior Personality Disorder.

Ultimately NYCTA filed an application on behalf of Campbell seeking his involuntary retirement due to mental incapacity. NYCTA cited Campbell’s psychotherapist’s diagnosis of Impulsive Behavior Personality Disorder and an NYCTA doctor’s evaluation that such disorder required a permanent restricted work assignment.

The decision sets out the due process procedures to be followed once an employer files an application for involuntary retirement on behalf of an employee as follows:

1. The employee is entitled to all departmental files that will be considered by the Medical Board in reviewing his case.

2. The employee may supplement these records with written argument or additional medical or other evidence if he or she so desires.

3. The employee is to be interviewed by the Medical Board privately and the Board may refer the individual to a psychiatrist, psychologist or other medical specialists for evaluation.

4. The Medical Board is to prepare a written report that explains findings and the reasons supporting such findings. If the Board finds the employee to be mentally incapacitated for the performance of duty and ought to be retired, the Board will recommend his or her involuntary retirement.

5. If the Medical Board recommends approval of the retirement application by the head of the agency, the member, his counsel or his union representative may appear before the Retirement System’s Board of Trustees and present arguments on the propriety of the Medical Board’s recommendation.

6. The Board of Trustees is to independently consider the Medical Board’s recommendation and uphold this recommendation if it concurs with the Medical Board’s findings or it may remand the case to the Medical Board if it finds procedural irregularities, if new evidence supports reconsideration, or if the recommendation is not supported by competent evidence.

7. If the Board of Trustees votes for involuntary retirement, the member may seek review in an Article 78 proceeding pursuant to New York’s Civil Practice Law and Rules.

8. If the individual is involuntarily retired, he or she may seek reinstatement one year following his retirement through procedures similar to those described in Steps 1-7 above.

In Campbell’s case, the Medical Board considered NYCTA’s involuntary retirement application, and the evidence he submitted his efforts to resist this action a number of times, as did the Board of Trustees, including his request that he be given more time on restricted duty prior to being involuntarily retired.

Following these reviews Campbell was involuntarily retired. He was advised that he could apply for reinstatement each year after his retirement to demonstrate that he was now capable of full duty. Campbell attempted to be reinstated but was unable to persuade the Board that he was qualified to be returned to duty.

Claiming that he had not been afforded due process of law in both the proceedings relating to his involuntary retirement and his subsequent request for reinstatement, Campbell sued.

The district court began its review by noting that:

1. To demonstrate a violation of Section 1983, a plaintiff must show that a person or entity, acting under color of state law, deprived him of the rights, privileges, or immunities guaranteed by the Constitution or laws of the United States;

2. The Fourteenth Amendment means that a local or state government employer may not involuntarily retire a public employee from his or her work without due process of law, citing Board of Regents v Roth, 408 U.S. 564 and Cleveland Board of Education v Loudermill, 470 U.S. 532; and

3. Due process requires notice and an opportunity to be heard, citing Matthews v Eldridge, 424 U.S. 319.

The elements that must be weighed determining if the individual was provided due process are:

(1) the importance of the individual’s interest affected by the official action;

(2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value of additional or alternative procedural safeguards; and

(3) the government’s interest in fiscal and administrative efficiency, and the burden additional or alternative procedures would entail.

Dismissing Campbell petition, the court said that “[g]iven the extensive nature of [the System’s] proceedings Campbell was not deprived of an adequate opportunity to be heard prior to his retirement.”

Another issue: was Campbell entitled to an adversarial hearing and the assistance of counsel during all Medical Board proceedings. No, said the court, noting that the Supreme Court has specifically rejected requiring an adversarial hearing with representation by counsel when making psychiatric medical determinations, even if they ultimately result in involuntary commitment , citing Washington v Harper, 494 US 210.

Reassignment of personnel

Reassignment of personnel
Appeal of Scott Rabler, Commissioner’s Decision No. 15,539

Scott Rabler appealed his transfer* from his position as a High School Principal to an untitled position “as a principal performing various administrative duties.” The Commissioner dismissed his appeal, commenting that school administrators may be transferred within their tenure areas without their consent, In contrast, the Commissioner noted that such personnel may not be transferred outside their tenure areas involuntarily.

According to the decision, Rabler claimed that the school board had established “High School Principal” as a separate tenure area and that he was improperly transferred to another tenure area without his consent. The Commissioner found nothing in the record to substantiate Rabler’s claim. Further, said the Commissioner, Rabler did not establish that “his new duties constitute work in a separate tenure area.” In view of this, Rabler’s representation that he was reassigned outside his tenure area was not persuasive.

Noting that in an appeal to the Commissioner, the appellant has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief, the Commissioner held that Rabler failed to meet these burdens and dismissed his appeal.

In addition, in response to Rabler’s argument that the school superintendent “exceeded his authority in making the transfer without the approval of [the] respondent board,” the Commissioner said that Education Law §§1711 and 2508 authorize a superintendent to transfer personnel from school to school.

The Commissioner also found that the board had given the superintendent “clear and broad” authority to make such personnel changes. This authority, said the Commissioner was set out in the superintendent’s contract with the board by its including provisions granting the superintendent the authority to “organize and reorganize the administrative and supervisory staff, including instructional and non-instructional personnel, in a manner which, in the Superintendent’s judgment, best serves the District.”

In contrast, reassignment of a tenured individual may not be made for disciplinary reasons without complying with the provisions of §3020-a of the Education Law. Here, however, the Commissioner concluded that Rabler’s reassignment had not been made to punish him for alleged misconduct.

The only evidence Rabler presented in support of his claim that his reassignment was disciplinary in nature was an article from the local newspaper asserting that an unnamed sources told the reporter that Rabler was transferred as a result of his misconduct. The Commissioner commented that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein.”

The Commissioner then said that “on the record before me, I am constrained to dismiss the appeal.”

* Although the decision occasionally uses the term "transfers" to describe the personnel change involved here, Rabler’s change was, in fact a "reassignment." Transfers typically involve moving an individual under the jurisdiction of one appointing authority to the jurisdiction of a different appointing authority and usually requires the approval of the individual involved. In contrast, a reassignment is the placement of an individual under the jurisdiction of one appointing authority to another position under the jurisdiction of the same appointing authority-- and the approval of the individual is not required unless a collective bargaining agreement provides otherwise.

For the full text of the decision, go to: http://nypublicpersonnellawarchives.blogspot.com/2007/03/reassignment-of-staff.html