Applicant for performance of duty disability retirement benefits must show that his or her disability was the result of an act of an inmate

Applicant for performance of duty disability retirement benefits must show that his or her disability was the result of an act of an inmate
Traxler v DiNapoli, 2016 NY Slip Op 03949, Appellate Division, Third Department

Sheila Traxler, a correction officer, applied for performance of duty disability retirement benefits alleging that she was permanently incapacitated due to work-related injuries sustained when a self-closing gate struck her after an inmate accidentally let go of it while Traxler was standing in the doorway.

Traxler’s application was initially denied by the Retirement System and she requested a hearing and redetermination. Following the hearing, the Hearing Officer sustained the denial of Traxler’s application for duty disability retirement holding that Traxler "failed to establish that her injuries were the result of an act of an inmate." The Comptroller accepted the findings and conclusions of the Hearing Officer and denied Traxler’s appeal. Traxler appealed the Comptroller's decision.

Citing Retirement and Social Security Law §607-c[a],* the Appellate Division annulled the Comptroller’s decision. The court explained that Traxler bore the burden of demonstrating that the incident in which she sustained her injuries was "the natural and proximate result of any act of any inmate." All that is required, said the court, is that the applicant for duty disability retirement show that his or her injuries “were caused by direct interaction with an inmate."

While Traxler did not believe that the inmate intended to injure her, she was injured as the result of the inmate disobeying Traxler’s instruction to remain where she was standing. Under these circumstances, said the court, there is no evidentiary basis in the record to conclude that [Traxler’s] injuries did not occur contemporaneously with, and flowed directly, naturally and proximately from, the inmate's’ disobedient and affirmative actions.

Accordingly, the Appellate Division ruled that Traxler’s injury was a natural and proximate result of an act of an inmate and remitted the matter to the Retirement System “for further proceedings on the issue of the permanency of [Traxler’s] alleged disability.”

In contrast to the ruling in Traxler, in Palmateer v DiNapoli, 117 AD3d 1228 [motion for leave to appeal denied, 24 NY3d 901], the Appellate Division rejected a correction officer’s appeal of the denial of his application for duty disability retirement, holding that “[a]ny connection between his injuries and the inmate conduct here is too attenuated to form a basis for an award of performance of duty disability retirement benefits.”

Lawrence Palmateer, a correction officer, had applied for duty disability retirement benefits pursuant to Retirement and Social Security Law §507-b.** The record indicated that Palmateer was seated at a desk when he heard a commotion in the shower room that he believed to be an altercation between inmates. Getting up from his desk “his right knee gave out, causing him to fall.”

Although it was uncontroverted that Palmateer was permanently incapacitated from performing the duties of a correction officer, the Appellate Division said that it did not agree with Palmateer’s contention that the injuries he suffered “responding to a potential emergency involving inmates” were the natural and proximate result of an act of an inmate.

* §607-c[a], Performance of duty disability benefit, provides, in pertinent part, that “Any sheriff, deputy sheriff, undersheriff or correction officer as defined in subdivision a of section sixty-three-b of this chapter, and who are employed in a county which makes an election pursuant to subdivision d of such section sixty-three-b, who becomes physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties by, or as the natural and proximate result of any act of any inmate or any person confined in an institution under the jurisdiction of such county, shall be paid a performance of duty disability retirement allowance equal to that which is provided in section sixty-three of this chapter, subject to the provisions of section sixty-four of this chapter.”

** §507-c, Performance of duty disability retirement, applies to the uniformed personnel serving in institutions under the jurisdiction of the New York City Department of Correction.

The Traxler decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03949.htm

ThePalmateer decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03322.htm

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The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Inability to satisfactorily perform the duties of the position due to an alleged disability

Inability to satisfactorily perform the duties of the position due to an alleged disability

OATH Index No. 858/16

The appointing authority alleged that a Computer Associate was unfit to perform his job after employer proved that he had difficulty keeping up with technological changes and was confrontational when interacting with co-workers and supervisors. Designated “a disability proceeding” it was submitted to the Office of Administrative Trials and Hearings pursuant to §72 of the Civil Service Law [CSL].

Finding that the employer had demonstrated that employee is currently unfit for the duties of his job,* Oath Administrative Law Judge Alessandra F. Zorgniotti recommended that the employee be placed on an Involuntary Leave of Absence, explaining that in order to place an employee on an involuntary medical leave pursuant to CSL §72, the employer must prove by a preponderance of the evidence that: (i) employee suffers from a disability, (ii) he of she is unable to competently perform his or her job duties, and (iii) his or her inability to perform is caused by a disability.

ALJ Zorgniotti also observed that: “The focus of the §72 proceeding is on the employee’s current fitness and ability to perform his or her job duties, not on his or her past condition or work performance” and that “[p]ast performance is relevant only to the extent that it is probative of [the employee’s] present condition and future conduct.”

Noting that “[a]n essential part of fitness to work in any job assignment is an ability to work with and be supervised by others, without being disruptive or abusive”, Judge Zorgniotti said earlier OATH decisions indicated that a “finding of unfitness is supported where an employee denies the existence of a disability. or refuses to treat it, [and there is competent medical evidence to the contrary] thereby creating a greater risk of future recurrence of the disability.” 

* Judge Alessandra F. Zorgniotti noted that employee’s behavior continued to be disruptive even after supervisors had made efforts to simplify his job, action that could be deemed to an effort to provide a reasonable accommodation of the employee's disability.

The appointing authority adopted the ALJ’s findings and recommendation.  
  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-858.pdf

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The Disability Benefits E-book:- This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Conducting disciplinary hearings in absentia

Conducting disciplinary hearings in absentia

OATH Index No. 1046/16

Although rare, an employee upon whom disciplinary charges have been served may refuses to participate in the scheduled disciplinary hearing. If the appointing authority goes forward with the disciplinary hearing notwithstanding the employee’s failure to participate, has the employee been denied due process?

New York courts have held that the disciplinary hearing may proceed and the employee tried in absentia provided, however, the appointing authority has complied with a number of procedural steps, including the following:

1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing.

2. That a diligent effort was made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee.

3. A formal hearing must be conducted and the employer is required to introduce evidence proving its charges to the hearing officer.

4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee.

5. The employee must be advised of the appointing authority’s determination and of the employee's right of appeal if he or she has been found guilty of one or more of the charges.

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066,  “due process does not require that [the charged employee] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.*

OATH Administrative Law Judge John B. Spooner conducted a Civil Service Law §75 disciplinary hearing with the employee in absentia when the appointing authority appeared at the scheduled time and place but the employee declined to do so. Judge Spooner characterized the hearing as being in the “form of an inquest” and found that the appointing authority had [1] properly served the employee with the disciplinary charges and the notice of the hearing, and [2] had then produced records and the provided testimony by the employee’s supervisors supporting the charges of the employee’s alleged misconduct at the "inquest." The ALJ found that that the appointing authority had proven the employee was guilty of the charges and recommended that the employee be terminated from service. 

This is another example demonstrating that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing.

Holding a disciplinary action in absentia, however, is a two-way street. Case law demonstrates that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority and make a final, binding determination. 

In Hall v Environmental Conservation, 235 A.D.2d 757, the employer boycotted the disciplinary arbitration because it believed that Hall was not entitled to the disciplinary arbitration. The arbitrator ruled in favor of the employee and directed Environment Conservation to reinstate the employee to his position with back pay. 

Environmental Conservation [DEC] sought a court order vacating the arbitration award, contending that its termination of Hall was not subject to being challenged pursuant to the “contract disciplinary procedure” because the State Department of Civil Service had disqualified Hall for employment. DEC argued that as Hall’s appointment had been voided by the Department of Civil Service he could not claim any rights under Section 75 of the Civil Service Law or the collective bargaining agreement.**

A Supreme Court judge granted the union’s motion to confirm that portion of the award providing for the payment of certain back pay, holding that the disciplinary proceeding was not rendered moot by the Civil Service Department’s action but declined to confirm that part of the award that directed DEC reinstate Hall to his former position. The Appellate Division sustained the lower court’s ruling.

* Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.

** Pursuant to Civil Service Law Section 76.4, many Taylor Law collective bargaining agreements provide that a permanent employee in the classified service may challenge a disciplinary action in accordance with the terms set out in a "contract disciplinary procedure" that is operative in lieu of disciplinary action pursuant to a statutory disciplinary procedure [see Antinore v State, 40 NY2d 6].

Judge Spooner’s decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1046.pdf

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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