Rejection of an applicant for appointment as a police officer based on “psychological unsuitability”

Rejection of an applicant for appointment as a police officer based on “psychological unsuitability”
Massaro v Mercado, 276 AD2d 445

After being rejected for appointment as a police officer, Louis Massaro filed a complaint with the Division of Human Rights. Massaro contended that the New York Police Department had unlawfully discriminated against him because of his disability. According to the decision, Massaro was rejected for appointment as a police officer of the grounds of psychological unsuitability for the position.

After initially finding probable cause, the State Division of Human Rights [DHR] dismissed Massaro’s compliant without conducting an administrative hearing. Massaro sued in an effort to compel DHR to conduct a hearing, only to have his petition dismissed by State Supreme Court Judge Lottie Watkins.

The Appellate Division affirmed Judge Watkins’ action, holding that DHR “was not required to conduct a hearing simply because it had previously made a probable cause determination in [Massaro’s] favor.”

There was no question that Massaro was rejected after a finding of psychological unsuitability. However, said the court, this is neither a disability within the meaning of the Human Rights Law nor was it perceived as a disability by the Police Department.

As the Division of Human Rights cannot disturb a hiring decision absent a showing that the decision was influenced by unlawful discrimination, the Appellate Division agreed that it should not be required to hold a hearing when it is clear that such a showing cannot be made.
NYPPL

Determining if assigned duties constitute out-of-title work

Determining if assigned duties constitute out-of-title work
CSEA v Angello, App. Div., Third Dept.,

CSEA, representing 128 employees of the Central New York Developmental Disabilities Service Organization serving as Developmental Aide - In Residence [DA-IR9] filed a grievance claiming that such employees were routinely assigned supervisory duties of a SG-12 Developmental Assistant I - In Residence [DAI-IR12] and that such tasks constituted out-of-title work under the relevant Taylor Law contract.

The SG-12 duties allegedly assigned to the SG-9 workers: submit budget reports, purchase requests, maintenance logs, time and attendance sheets, vehicle reports, formulate menus, supervise client recreational activities, provide for subordinate staff training and make decisions concerning the operation of the sleepover residences on a regular basis.

The grievance was denied at all steps of the contract grievance procedure and CSEA appealed. A state supreme court dismissed CSEA’s petition after finding that the duties complained of were not beyond the contemplation of the job description for DA-IR9 nor excessively complex or difficult, that CSEA failed to show that class members spent a significant amount of time at the objectionable tasks. Supreme Court concluded that there was a rational basis for denial of the grievance.

Pointing out that although [o]ut-of-title work, other than on an emergency basis, is prohibited by Section 61.2 of the Civil Service Law, the performance of duties by a grievant which are substantially similar to those set forth in that person’s job description does not constitute out-of-title work, nor does some overlap of the duties of a DA-IR9 employee and the higher grade DAI-IR12 employee.

The Appellate Division affirmed the lower court’s dismissal of CSEA’s petition. Its rationale: CSEA’s main argument that DA-IR9s were routinely assigned supervisory duties of DA1-IR12s is tempered by CSEA’s concession that “... DA-IR9s do not supervise other employees and the tasks of preparing and submitting budget reports, purchase requests and other documents performed by DA-IR9s in their residential settings ... were rationally determined not to be out-of-title work or [constituted a] permissive overlap of the duties of DAI-IR12s who supervise those residences.”
NYPPL

Administrative Law Judge examination scheduled

Administrative Law Judge examination scheduled
Source: New York State Department of Civil Service

The New York State Department of Civil Service will hold an examination for Administrative Law Judge, NYS Workers Compensation Board, on February 5, 2011. This is an “SG-28 position, with a starting salary of $86,168.

Appointees working in the five boroughs of New York City or in Nassau, Suffolk, Rockland, or Westchester Counties will receive an additional $3,026 annual “downstate salary adjustment.” Appointees working in Dutchess, Orange, or Putnam Counties will receive an additional $1,513 annual “mid-Hudson salary adjustment.”

A $45 application fee is required.

N.B. The deadline for filing applications is January 3, 2011.

This examination open to all individuals meeting the minimum qualifications set out in the Examination Announcement.

There is an "ONLINE APPLICATION PROCESS" available at http://www.cs.state.ny.us/exams
For additional information, including a description of the duties of the position, and the minimum qualifications for this examination, go to: http://www.cs.state.ny.us/examannouncements/announcements/pdf/25-438.pdf
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Fruits of an undercover investigation used as a basis for disciplinary charges

Fruits of an undercover investigation used as a basis for disciplinary charges
DiGiovanni v Safir277 AD2d 36

May the appointing authority bring disciplinary action against an employee based on information obtained from undercover police officers. As the DiGiovanni decision indicates, such information can serve as a basis for filing disciplinary charges against an individual.

In this instance an undercover police officer and her supervisor testified that George DiGiovanni approached a police decoy and proposed oral sex for a fee.

DiGiovanni, as it turned out, was a New York City police officer. As a result of this episode, he was served with administrative disciplinary charges. The hearing officer found him guilty of soliciting sex and imposed the penalty of dismissal. DiGiovanni appealed only to have the Appellate Division unanimously affirm both the administrative determination that he was guilty of the charges filed against him and penalty imposed.

The Appellate Division decided that the evidence presented at the disciplinary hearing supported the finding that DiGiovanni was guilty of soliciting sex for money from a person believed by him to be a prostitute.

Turning to DiGiovanni’s objection to his being dismissed from his position, the court said that "[g]iven the gravity of the offense and [DiGiovanni’s] prior disciplinary history, the penalty imposed does not shock our conscience."

The court’s reference to DiGiovanni’s prior disciplinary history suggests that the department asked the hearing officer to consider DiGiovanni’s personnel history in determining the penalty to be imposed.

An employee’s personnel records may be considered by a hearing officer when the setting a disciplinary penalty provided the appointing authority has complied with the procedures set out by the Court of Appeals in Bigelow v Village of Gouverneur, 63 NY2d 470. The procedures to be followed in order to satisfy the Bigelow test:

1. The employee must be advised that his or her prior disciplinary record will be considered in setting the penalty to be imposed; and

2. The employee must be given an opportunity to submit a written response to any adverse material contained in the record or offer mitigating circumstances.
NYPPL