Abolishment of positions by a BOCES

Abolishment of positions by a BOCES must be made in good faith

Appeal of Christopher Curtis and G. Michael Newell from action of the Otsego-Northern Catskill Board of Cooperative Educational Services, Decisions of the Commissioner of Education, Decision No. 15,831

Christopher Curtis and G. Michael Newell appealed BOCES’ decision eliminate two positions of “English Teacher” in the Alternative Education Department effective September 1, 2004, because of a reduced request for services, contending that the stated reason for the abolition of their positions was unsupported by the facts.

With respect to Newell, BOCES argued that his appeal is moot because he retired from his position and that the Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest.”

The Commissioner agreed in part. He said “[r]etirement constitutes a formal and presumably permanent withdrawal from the teaching profession” and ruled that Newell’s petition is moot to the extent he seeks reinstatement to his former position. In contrast, the Commissioner said that Newell’s claim that seeks back salary and benefits “is not entirely moot because he alleges that BOCES abolished their positions improperly and unlawfully assigned others to teach English classes prior to the effective date of his retirement.”

As to the claim that BOCES abolished their positions in bad faith in violation of the Education Law, the Commissioner pointed out that Education Law Section 3013(1) provides that if a position is abolished and a similar position is created, the person who filled the abolished position must be appointed to the new position. However, neither Curtis nor Newell claimed that BOCES created similar positions and failed to appoint them to those positions. Rather they contend that BOCES “effectively created” two positions by redistributing their workload.

The Commissioner said that, in general, a board of education, acting in good faith, may abolish positions and consolidate the duties of the former positions among existing positions, citing Education Law §§1709[16] and [33]. Similarly, said the Commissioner, a board of cooperative educational services may abolish a position and consolidate it with another without creating a new position, pointing to Education Law §3013[3][a].

Noting that the record reflects that the elimination of two full-time English positions in BOCES’ Alternative Education Department was for economic and administrative reasons, the Commissioner concluded that Curtis and Newell failed to meet their burden of showing that BOCES acted in bad faith in abolishing their positions. Accordingly, the Commissioner ruled that neither is entitled to the requested reinstatement or back pay and dismissed their appeal.

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

http://www.counsel.nysed.gov/Decisions/volume48/d15831.htm

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The New York State Division of Human Rights fines owners of businesses found guilty of sexual harassment at the workplace

The New York State Division of Human Rights fines owners of businesses found guilty of sexual harassment at the workplace

Source: NYS Division of Human Rights

The New York State Division of Human Rights recently determined that two female employees had been subjected to sexual harassment in the workplace. 

In commenting on the rulings, New York State Deputy Secretary for Civil Rights Alphonso David said “Every person is legally entitled to a work environment free of harassment and discrimination … Sexual harassment will not be tolerated in our State and the Administration will use its powers to prosecute those who violate the law.” 

In one case the Division found that the complainant had been subjected to a pattern of sexual harassment by the owner of the business. This included touching the complainant inappropriately, appearing at her home uninvited and offering to pay her rent in exchange for a sexual relationship.

The Division awarded the woman $50,000 in compensatory damages; $13,000 as back wages for the period in which she was paid less than other waitresses; $10,668.68 as back wages for the period in which she was unemployed, and $23,700.06 as back wages for the period she was employed but unable to find a job with a comparable salary. In addition the restaurant owner was ordered to pay $75,000 as a civil fine and penalty for violating New York State’s Human Rights Law.

The decision is posted on the Internet at: http://www.dhr.ny.gov/pdf/orders/2012/hernandez_v_team_taco_mexico.pdf 

In the second case the Division found a woman was subjected to inappropriate behavior by the owner of the business soon after being hired. Although the complainant resigned from her position, the owner continued the harassment by telephone. The complainant was awarded $75,000 in compensatory damages and $27,500 in back wages. The owner was also ordered to pay $25,000 in civil fines and penalties. 

Sexual harassment is prohibited as a form of sex discrimination under the New York State Human Rights Law. The Division reports that it received 517 sexual harassment complaints in 2011. 

The decision is posted on the Internet at:

http://www.dhr.ny.gov/pdf/orders/2012/park-v-kk-management.pdf 

Other decisions by the Division are available on the Division’s website at  http://www.dhr.ny.gov/orders.html  

Failure to cooperate in an employer’s investigation held disqualifying misconduct for the purposes of receiving unemployment insurance benefits

Failure to cooperate in an employer’s investigation held disqualifying misconduct for the purposes of receiving unemployment insurance benefits

Matter of Ortiz (New York Eye & Ear Infirmary--Commissioner of Labor), 2012 NY Slip Op 05369, Appellate Division, Third Department

An administrative assistant was terminated from her position for insubordination after she refused to cooperate with her employer's investigation of an earlier incident involving an angry dispute between the administrative assistant and an employee of a tenant.

The Unemployment Insurance Appeal Board denied the administrative assistant from unemployment insurance benefits after it determined that she had lost her job due to her misconduct.

The Appellate Division affirmed, explaining “An employee's failure to comply with an employer's reasonable request may constitute insubordination rising to the level of disqualifying misconduct."

The administrative assistant conceded that she had refused repeated requests by her employer’s director that she discuss the incident with him. Given the reasonableness of this request and the absence of a compelling reason for administrative assistant's refusal, the court said that it found no basis to vacate the Board's decision.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05369.htm