Arbitrating an employee’s termination after a random drug test proved positive

Arbitrating an employee’s termination after a random drug test proved positive

Local 333, United Marine Division, International Longshoreman's Association, AFL-CIO, Petitioner-Appellant, v New York City Department of Transportation, 35 A.D.3d 211, Motion for leave to appeal denied, 9 N.Y.3d 805

A ferryboat deckhand employed by the New York City Department of Transportation [DOT] was terminated because he was unable to provide a urine sample during a random drug test. The test was administered eight days after DOT instituted a "Zero Tolerance Policy for Positive Drug and Alcohol Test Results."

DOT’s new policy was adopted in response to the Staten Island Ferry accident on October 15, 2003. That accident involved a DOT ferryboat pilot who had taken medically prescribed drugs colliding with a concrete pier. 11 passengers were killed and dozens of others injured as a result of the collision.

In addition to testing positive for drugs or alcohol, DOT’s zero tolerance policy applied if an employee refused to submit to a drug or alcohol test as defined under Title 49 Part 40 of the Code of Federal Regulations. It also applied if an individual failed to provide at least a 45 ml urine sample within 3 hours of their first unsuccessful attempt to provide a sample unless it was determined that there was a medical reason for such failure.

A deckhand was unable to produce a sufficient urine sample, despite consuming an unspecified amount of liquid during the 2½; hours between his two attempts. DOT terminated him pursuant to its “Zero Tolerance” policy. The union grieved the deckhand’s dismissal and ultimately the matter was submitted to arbitration.

The arbitrator modified the penalty of dismissal to a 30-day suspension after finding that there were mitigating circumstances -- DOT’s failure to produce key witnesses – that supported imposing a lesser penalty.

Supreme Court, however, refused to confirm the arbitration award, holding that the arbitrator exceeded his power because the “award violated public policy” and, considering the recent Staten Island Ferry accident, was irrational and "devoid" of common sense. The Appellate Division reversed the lower court’s ruling and affirmed the arbitrator’s determination.

The Appellate Division ruled that DOT’s failure to produce the witnesses deprived the deckhand “of the opportunity to challenge the reliability of the test and whether the procedures specified in the regulation were followed.”

The Appellate Division pointed out that an arbitration award may be vacated if it "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power," citing Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33. On the other hand, the court noted that “These exceptions are to be narrowly read in light of the strong federal and New York public policies favoring resolution of labor disputes by arbitration.”

The Appellate Division then concluded that none of these exceptions applied to the arbitration award in this instance. It said that the following test applied:

A public policy whose violation warrants vacatur of an arbitration award must entail "strong and well-defined policy considerations embodied in constitutional, statutory or common law [that] prohibit a particular matter from being decided or certain relief from being granted by an arbitrator," citing New York State Correctional Officers & Police Benevolent Assoc., 94 NY2d 321.

In contrast, said the court, policies that are merely "general considerations of supposed public interests" are not sufficient grounds for vacating an arbitrator’s award.

In this instance the Appellate Division ruled that the arbitration award did not violate a strong, well-defined public policy because DOT’s Zero Tolerance Policy for Positive Drug and Alcohol Test Results was not expressly embodied in constitutional, statutory or common law.

The “Zero Tolerance Policy” was adopted as DOT’s new internal policy shortly before the individual was tested.

The New York City Administrative Code § 12-307(b) — which provides generally that the City and other public employers have sole authority over all aspects of the work and discipline of their employees, and generally removes those areas from the scope of collective bargaining — does not embody a public policy violated by the award. since that provision also states that matter concerning “the practical impact that decisions have on terms and conditions of employment, including, but not limited to, questions of workload, staffing and employee safety, are within the scope of collective bargaining.”

Clearly, said the court, the zero tolerance drug policy is a disciplinary matter that has a "practical impact" on the "terms and conditions of employment, including, but not limited to, . . . employee safety." Accordingly, it is "within the scope of collective bargaining…." Thus, ruled the court, Local 333’s challenging the impact of the application of the policy on an individual in the negotiating unit is within the scope of the broad arbitration clause set out in the collective bargaining agreement.

Holding that the arbitrator’s decision was reasonable and justified by the evidence, or lack thereof, in the record, the Appellate Division decided that the arbitrator had not exceeded his powers.

The court said that the relevant collective bargaining agreement contained a broad arbitration clause covering disputes such as these. Accordingly, this allowed the arbitrator to provide or direct the relief or remedy he saw fit under the circumstances.

The full text of decision is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/search?q=Local+333

Quid pro quo sexual harassment

Quid pro quo sexual harassment

Pipkins v City of Temple Terrance [FL], CA11 267 F.3d 1197

In the Pipkins case the Eleventh Circuit Court of Appeals decided that harassment at the worksite as a result of a “failed consensual sexual relationship” did not support a quid pro quo sexual harassment claim filed pursuant to Title VII.

An employee alleged that she had suffered sexual harassment and retaliation within the meaning of Title VII and sued her employer, the City of Temple Terrace, Florida. A federal district court judge granted the city's motion for summary judgment and the employee appealed.

According to the decision,”[f]rom approximately June 1993 until May 1994, the employee maintained an on-again, off-again personal relationship with Daniel Klein, the City's Finance Director and Assistant City Manager. Klein was not the employee's immediate supervisor. After the employee and Klein ceased to have a sexual relationship the employee claimed that Klein continued to pursue her romantically....”

Initially given “exemplary job evaluations,” after October 1994 the employee's performance ratings began to suffer. She attributed this to the termination of her relationship with Klein and told the City's Human Relations Specialist of her concerns.

The employee alleged that in December 1994, the City Manager overheard a conversation between herself and Klein indicating the personal nature of their former relationship. After the City Manager completed an investigation, Klein was notified that he should immediately commence seeking alternate employment. Klein left the City's employ in June 1995.

The employee's job evaluations continued to deteriorate, scoring lower on her May 1995 evaluation than she had on previous ones, and worse yet on her October 1995 evaluation. As a result, The employee resigned effective January 2, 1996, approximately six months after Klein left the City's employ. She sued, claiming constructive discharge.

To establish prima facie case of quid pro quo sexual harassment, the employee was required to show: (1) that she belongs to a protected group; (2) that she has been subject to unwelcome sexual harassment; (3) that the harassment was based on her sex; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment; and (5) that there is a basis for holding the employer liable.

As to the issue of what constitutes sexual harassment at the work site, in Oncale v Sundowner Offshore Services, Inc., 523 U.S. 75, the Supreme Court said that “[t]he critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed”.

The Circuit Court said that based on Oncale, the employee did not meet the third factor -- she cannot establish that the harassment complained of was committed by reason of her sex.” Earlier rulings had distinguished between actions based on discriminatory animus and those based on personal animosity resulting from failed consensual relationships. In this case the court found that the consensual nature of the relationship between [the employee] and Klein and any resulting feelings of enmity determinative -- it was the result of personal animosity rather than any discriminatory animus.

Most of the actions of which the employee complained were committed by her immediate supervisor, Florence Lewis-Begin, rather than by Klein.

The employee contended, but offered no evidence, that Lewis-Begin was motivated by her friendship with Klein's wife to criticize her job performance. The court said that such motivation would be attributable to personal animosity and would not meet the Title VII requirement that the alteration of terms and conditions of employment be “because of... sex.”

The court, however, was quick to point out it was not deciding whether or not “once a consensual relationship between a supervisor and a subordinate is established, the subordinate could never then become victim to quid pro quo sexual harassment by that supervisor subsequent to the termination of the relationship.”

As to the employee's retaliation claim, the court found that her continuing negative evaluations were in response to well-documented job performance deficiencies. Although the employee claimed constructive discharge, her working conditions were not “so difficult ... that a reasonable person would have felt compelled to resign.”

As to repeatedly receiving poor evaluations, the court said that this would be unpleasant for anyone, but it does not rise to the level of such intolerable conditions that no reasonable person would remain on the job. The Circuit Court's conclusion: Viewing the facts in the light most favorable to [the employee], we agree with the district court's finding that harassment, if any, suffered by [the employee] was not the result of her gender, but rather in response to possible disappointment Klein may have experienced as a result of their failed relationship. We also agree that [the employee] has failed to establish a retaliation claim as a matter of law.

The lower court's dismissal of the employee's complaint was sustained.

Disclosing the unlisted telephone numbers called by public officials pursuant to a FOIL request

Disclosing the unlisted telephone numbers called by public officials pursuant to a FOIL request

Matter of Hawley v Village of Penn Yan, 35 A.D.3d 1270

This case arose when Robert Hawley submitted a Freedom of Information [FOIL] request to obtain a list of all of the telephone calls made and received by the Mayor of the Village of Penn Yan for a two-month period on a cellular telephone paid for the Village.

Responding to his request, the Village provided Hawley with the list of all of the mayor’s cell phone calls for the period requested but one. It did not provide that one telephone number because it was an “unlisted” number.

In the litigation that followed, the Appellate Division said that Supreme Court had “properly granted [Hawley’s] petition only in part, granting [Hawley] "the right to examine all requested telephone records, excluding unlisted wired and wireless numbers."

The general standard applied by the courts: "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government."

The basic concept underlying FOIL -- all public documents are available to the public. However, an agency may, but is not required to, deny public access to documents if such records or documents fall within one or more of the "exemptions from disclosure" allowed under FOIL. Unless access or disclosure is otherwise specifically prohibited by law, the basic rule is that only those records that fall within the statutory exceptions may be withheld from the public if the custodian of such records, as a matter of exercising discretion, elects to do so.

In addition, a public body may exercise its discretion and apply the exemption to disclosure where disclosure “would constitute an unwarranted invasion of personal privacy" (Public Officers Law §87[b]).

According to the decision, the question to be resolved in the context of this appeal was "What constitutes an unwarranted invasion of personal privacy as measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities?”

The Appellate Division said that this determination requires “balancing the competing interests of public access and individual privacy." In the court’s view, a situation in which a person chooses to have an unlisted phone number suggests that disclosure of the number would, in that individual’s view, be unnecessarily intrusive or result in an unwarranted invasion of personal privacy, citing NY Dept. of State Commission on Open Government, Advisory Opinions 9197 and 8740.

The court decided that in this instance FOIL did not require the disclosure of the unlisted telephone numbers Hawley asked to have revealed.