Family Medical Leave Act and the Doctrine of Eleventh Amendment Immunity
Lambert v NYS Office of Mental Health, USDC, EDNY, Judge Gleeson, 97-CV-1347
Efforts by state employees to challenge alleged violations of federal civil rights and other laws have be rejected by federal courts under the doctrine of Eleventh Amendment Immunity. In the Lambert case, a federal district court dismissed claims alleging that the State’s Office of Mental Health [OMH] violated the Family Medical Leave Act on the basis of Eleventh Amendment Immunity.
Patricia Lambert had requested leave pursuant to the Family and Medical Leave Act of 1993 [FMLA], 29 USC Section 2601 on December 16, 1994. She provided medical documentation in support of her request.
While her FMLA request was pending, she used sick leave, personal time, and vacation time to cover her absences from work. OMH, Lambert claimed, (1) found her to be her eligible for FMLA benefits on February 1995 but (2) terminated her in March 1995.
The court never reached the merits of Lambert’s allegations, holding that [s]ince Lambert’s FMLA claim against the Office of Mental Health is predicated on a request for leave involving her own health condition (in contrast, for example, to a request for leave for the birth of a child), it is barred by the Eleventh Amendment.
The court cited Hale v Mann, 219 F.3d 61, 67, decided by the U.S. Court of Appeals, Second Circuit, as authority for its determination.
In Hale the Circuit Court said that FMLA’s abrogation of states’ sovereign immunity to suits regarding employees’ own health conditions exceeded Congress’s power under the Fourteenth Amendment.
Judge Gleeson also commented that Lambert’s FMLA claim against the individual defendants was inappropriate, noting a decision by the Eleventh Circuit holding that individual state officers are not employers within the meaning of the FMLA [Wascura v Carver, 169 F.3d 683].
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
Feb 1, 2011
Limiting the selection of arbitrators
Limiting the selection of arbitrators
Suffolk County PBA v Suffolk County, 273 AD2d 222
Suffolk County adopted a resolution [Resolution 377-1998] barring arbitrators who have served in labor disputes involving Nassau County within the preceding three years to serve in disputes under collective bargaining agreements voluntarily submitted to arbitration or in binding arbitration.
Suffolk County PBA challenged the resolution, contending that it violated both the terms of a collective bargaining agreement [CBA] between it and the county and the Taylor Law. State Supreme Court Judge Jack J. Cannavo, agreed and ruled that the resolution was invalid.
The county appealed and the Appellate Division overturned the lower court’s decision. The Appellate Division held that the CBA and the Suffolk County Administrative Code, which was substantially equivalent to the Taylor Law, both contained binding arbitration provisions permitting Suffolk County to select arbitrators at its own discretion.
Pointing out that the county could exercise its discretion in selecting arbitrators, the Appellate Division declared that the PBA lacks standing to assert that the resolution is arbitrary or capricious, or that the Suffolk County Legislature did not possess the authority to determine how Suffolk County should select its arbitrators.
The court also commented that in contrast to the PBA’s contention, the resolution did not prohibit an arbitrator from making comparisons between Nassau and Suffolk County to determine arbitration issues.
Suffolk County PBA v Suffolk County, 273 AD2d 222
Suffolk County adopted a resolution [Resolution 377-1998] barring arbitrators who have served in labor disputes involving Nassau County within the preceding three years to serve in disputes under collective bargaining agreements voluntarily submitted to arbitration or in binding arbitration.
Suffolk County PBA challenged the resolution, contending that it violated both the terms of a collective bargaining agreement [CBA] between it and the county and the Taylor Law. State Supreme Court Judge Jack J. Cannavo, agreed and ruled that the resolution was invalid.
The county appealed and the Appellate Division overturned the lower court’s decision. The Appellate Division held that the CBA and the Suffolk County Administrative Code, which was substantially equivalent to the Taylor Law, both contained binding arbitration provisions permitting Suffolk County to select arbitrators at its own discretion.
Pointing out that the county could exercise its discretion in selecting arbitrators, the Appellate Division declared that the PBA lacks standing to assert that the resolution is arbitrary or capricious, or that the Suffolk County Legislature did not possess the authority to determine how Suffolk County should select its arbitrators.
The court also commented that in contrast to the PBA’s contention, the resolution did not prohibit an arbitrator from making comparisons between Nassau and Suffolk County to determine arbitration issues.
Jan 31, 2011
State Comptroller DiNapoli proposes legislation providing for the forfeiture of pension benefits of members guilty of “Abuse of Public Trust”
State Comptroller DiNapoli proposes legislation providing for the forfeiture of pension benefits of members guilty of “Abuse of Public Trust”
Source: Office of the State Comptroller
State Comptroller Thomas P. DiNapoli has proposed the introduction of legislation providing for the forfeiture of pension benefits* if certain members of the System are found guilty of committing a felony related to the performance of their official duties.
DiNapoli’s bill also imposes a penalty up to twice the amount a public official benefited from the commission of a crime committed in the course of his or her performace [or presumably, an ommission] of his or her public duty.
DiNapoli, noting State Constitution’s prohibitions against any diminishment of retirement benefits for current public officials and public servants, indicated that the pension forfeiture provisions in the proposed bill would apply only to indiviuals becoming members of the Retirement System after the measure's effective date.
The proposed bill is posted on the Internet at:
http://osc.state.ny.us/press/releases/jan11/forfeiture.pdf.
As to the issue of a public officer or employee forfeiting retirement benefits under certain conditions, in Castro v Safir, 291 A.D.2d 212** the basic issue concerned the fallout of New York City police officer Antonio Castro's dismissal prior to the effective date of his retirement. If he was so lawfully dismissed, any pension benefits to which he would otherwise be entitled would be forfeited pursuant to Section 13-173.1 of the New York City Administrative Code.***
Section 13-173.1 requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.
Castro was terminated from his position following a "second arrest." As a result he became ineligible for the ordinary disability retirement benefits for which he had applied. He sued, contending that the Department had terminated him in bad faith in order to frustrate his eligibility for pension benefits as the New York City Employees' Retirement System's Medical Board had previously found Castro eligible for ordinary disability retirement.
According to the decision, Castro was terminated after he had applied for ordinary disability retirement but before he was actually retired for disability.
The Appellate Division ruled that Castro had forfeited his pension benefits as he was discharged before he retired on ordinary disability, i.e., he was not in service on the effective date of his retirement.
This conclusion by the Appellate Division appears to parallel the Court of Appeals holding in its Waldeck and Barbaro rulings wherein the Court of Appeals said that Section 13-173.1 provides that an employee's disciplinary termination prior to effective date of his or her voluntary resignation results in a forfeiture of his or her eligibility for pension benefits. [Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.]
Waldeck and Barbaro challenged the forfeiture of their respective retirement benefits on the ground that they had not been advised of the effective dates of their respective discharges from employment after being found guilty of disciplinary charges filed against them.
Both Waldeck and Barbaro had been terminated prior to their intended dates of voluntary resignation. Did this mean that they could not vest their retirement benefits and thus those benefits would, in effect, be forfeited? In a word -- yes!
The Court of Appeals said that Section 13-173.1 of the Administrative Code contains no requirement that employees receive notice of their discharge from employment, nor does any other statutory authority, and thus the fact that neither Waldeck nor Barbaro were aware that they had been terminated prior to the effective date of their respective resignations "has no relevance to the effective date of termination from employment under Section 13-173.1."
According to the decision, there is no legislative requirement for notice affecting the effective date of discharge for purposes of determining whether a pension has vested within the meaning of Section 13-173.1 of the Code.
* If enacted into law, this presumably could result in the forfeiture of the pension portion of the individual's retirement allowance but that portion of the individual's retirement allowance attributed to his or her "employee contributions" would be refunded.
** See, also, Cipolla v. Kelly 26 A.D.3d 171, wherein the court held that “The fact that [the individual] was about to retire, or that [the individual] ultimately settled the criminal charges by pleading to a violation, does not demonstrate [the individual’s] termination was in bad faith.”
*** As a police officer, Castro was a "public officer." He was also a public employee, as although not all public employees are public officers, all public officers are public employees.
Source: Office of the State Comptroller
State Comptroller Thomas P. DiNapoli has proposed the introduction of legislation providing for the forfeiture of pension benefits* if certain members of the System are found guilty of committing a felony related to the performance of their official duties.
DiNapoli’s bill also imposes a penalty up to twice the amount a public official benefited from the commission of a crime committed in the course of his or her performace [or presumably, an ommission] of his or her public duty.
DiNapoli, noting State Constitution’s prohibitions against any diminishment of retirement benefits for current public officials and public servants, indicated that the pension forfeiture provisions in the proposed bill would apply only to indiviuals becoming members of the Retirement System after the measure's effective date.
The proposed bill is posted on the Internet at:
http://osc.state.ny.us/press/releases/jan11/forfeiture.pdf.
As to the issue of a public officer or employee forfeiting retirement benefits under certain conditions, in Castro v Safir, 291 A.D.2d 212** the basic issue concerned the fallout of New York City police officer Antonio Castro's dismissal prior to the effective date of his retirement. If he was so lawfully dismissed, any pension benefits to which he would otherwise be entitled would be forfeited pursuant to Section 13-173.1 of the New York City Administrative Code.***
Section 13-173.1 requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.
Castro was terminated from his position following a "second arrest." As a result he became ineligible for the ordinary disability retirement benefits for which he had applied. He sued, contending that the Department had terminated him in bad faith in order to frustrate his eligibility for pension benefits as the New York City Employees' Retirement System's Medical Board had previously found Castro eligible for ordinary disability retirement.
According to the decision, Castro was terminated after he had applied for ordinary disability retirement but before he was actually retired for disability.
The Appellate Division ruled that Castro had forfeited his pension benefits as he was discharged before he retired on ordinary disability, i.e., he was not in service on the effective date of his retirement.
This conclusion by the Appellate Division appears to parallel the Court of Appeals holding in its Waldeck and Barbaro rulings wherein the Court of Appeals said that Section 13-173.1 provides that an employee's disciplinary termination prior to effective date of his or her voluntary resignation results in a forfeiture of his or her eligibility for pension benefits. [Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.]
Waldeck and Barbaro challenged the forfeiture of their respective retirement benefits on the ground that they had not been advised of the effective dates of their respective discharges from employment after being found guilty of disciplinary charges filed against them.
Both Waldeck and Barbaro had been terminated prior to their intended dates of voluntary resignation. Did this mean that they could not vest their retirement benefits and thus those benefits would, in effect, be forfeited? In a word -- yes!
The Court of Appeals said that Section 13-173.1 of the Administrative Code contains no requirement that employees receive notice of their discharge from employment, nor does any other statutory authority, and thus the fact that neither Waldeck nor Barbaro were aware that they had been terminated prior to the effective date of their respective resignations "has no relevance to the effective date of termination from employment under Section 13-173.1."
According to the decision, there is no legislative requirement for notice affecting the effective date of discharge for purposes of determining whether a pension has vested within the meaning of Section 13-173.1 of the Code.
* If enacted into law, this presumably could result in the forfeiture of the pension portion of the individual's retirement allowance but that portion of the individual's retirement allowance attributed to his or her "employee contributions" would be refunded.
** See, also, Cipolla v. Kelly 26 A.D.3d 171, wherein the court held that “The fact that [the individual] was about to retire, or that [the individual] ultimately settled the criminal charges by pleading to a violation, does not demonstrate [the individual’s] termination was in bad faith.”
*** As a police officer, Castro was a "public officer." He was also a public employee, as although not all public employees are public officers, all public officers are public employees.
Employee’s termination after hearing held in absentia annulled for failure to prove the employee was notified of the time and place of the hearing
Employee’s termination after hearing held in absentia annulled for failure to prove the employee was notified of the time and place of the hearing
Matter of Toolasprashad v Kelly, 2011 NY Slip Op 00419, Appellate Division, First Department
The Toolasprashad decision demonstrates that evidence that the accused individual was properly served with the notice a scheduled disciplinary hearing may become a critical element in the proceeding.
Rudranu Toolasprashad was terminated from his position following a disciplinary hearing that was held notwithstanding his failing to appear at the designated time and place.
Toolasprashad filed a petition seeking to annul his dismissal, which Supreme Court granted “to the extent of remanding the matter to respondents for a full hearing on proper notice to [Toolasprashad].” The Appellate Division affirmed the Supreme Court’s decision.
The Appellate Division noted that the hearing officer found that Toolasprashad failed to appear for the hearing was without good cause, this finding was based on the Department representation that had made “diligent efforts to serve [Toolasprashad] with the charges against him and to notify him of the hearing and that [Toolasprashad] had not provided proper contact information in Peru, where he was on leave.”
While this may have otherwise been sufficient, the court said that the record indicated that “the sole evidence of [the Department’s] attempted service in Lima was counsel's hearsay representations.”
Accordingly, the Appellate Division ruled that the hearing officer’s determination that Toolasprashad’s failure to appear “was without good cause” lacked the requisite proof, citing People ex rel. Griffin v Walters, 83 AD2d 618.
Although the Department argued that “the technical rules of evidence need not be complied with in disciplinary proceedings before administrative bodies,” the court said that the deficiency in the proof of the Department’s efforts to effect service in Lima “goes beyond the lack of technical compliance.”
The court also called attention to the Rules of City of New York Police Department (38 RCNY) §15-03 which, in pertinent part, required that "[s]ervice of the Charges and Specifications shall be made in a manner reasonably calculated to achieve actual notice to the respondent" and that "[a]ppropriate proof of service shall be required."
Thus, concluded the Appellate Division, the Department failed to comply with its own stated obligation to provide Toolasprashad with the required notice of the time and place of the disciplinary hearing. Accordingly, said the court, the hearing officer’s decision to go forward with the disciplinary hearing in Toolasprashad's absence was arbitrary and capricious.
The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.
The decision demonstrates 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.
Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted." Unlike the issue in Toolasprashad, i.e., was the accused employee properly served, in Mari the Appellate Division pointed out that “[Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."
The Toolasprashad decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00419.htm
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
Matter of Toolasprashad v Kelly, 2011 NY Slip Op 00419, Appellate Division, First Department
The Toolasprashad decision demonstrates that evidence that the accused individual was properly served with the notice a scheduled disciplinary hearing may become a critical element in the proceeding.
Rudranu Toolasprashad was terminated from his position following a disciplinary hearing that was held notwithstanding his failing to appear at the designated time and place.
Toolasprashad filed a petition seeking to annul his dismissal, which Supreme Court granted “to the extent of remanding the matter to respondents for a full hearing on proper notice to [Toolasprashad].” The Appellate Division affirmed the Supreme Court’s decision.
The Appellate Division noted that the hearing officer found that Toolasprashad failed to appear for the hearing was without good cause, this finding was based on the Department representation that had made “diligent efforts to serve [Toolasprashad] with the charges against him and to notify him of the hearing and that [Toolasprashad] had not provided proper contact information in Peru, where he was on leave.”
While this may have otherwise been sufficient, the court said that the record indicated that “the sole evidence of [the Department’s] attempted service in Lima was counsel's hearsay representations.”
Accordingly, the Appellate Division ruled that the hearing officer’s determination that Toolasprashad’s failure to appear “was without good cause” lacked the requisite proof, citing People ex rel. Griffin v Walters, 83 AD2d 618.
Although the Department argued that “the technical rules of evidence need not be complied with in disciplinary proceedings before administrative bodies,” the court said that the deficiency in the proof of the Department’s efforts to effect service in Lima “goes beyond the lack of technical compliance.”
The court also called attention to the Rules of City of New York Police Department (38 RCNY) §15-03 which, in pertinent part, required that "[s]ervice of the Charges and Specifications shall be made in a manner reasonably calculated to achieve actual notice to the respondent" and that "[a]ppropriate proof of service shall be required."
Thus, concluded the Appellate Division, the Department failed to comply with its own stated obligation to provide Toolasprashad with the required notice of the time and place of the disciplinary hearing. Accordingly, said the court, the hearing officer’s decision to go forward with the disciplinary hearing in Toolasprashad's absence was arbitrary and capricious.
The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.
The decision demonstrates 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.
Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted." Unlike the issue in Toolasprashad, i.e., was the accused employee properly served, in Mari the Appellate Division pointed out that “[Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."
The Toolasprashad decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00419.htm
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
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NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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