Relying on hearsay evidence in administrative hearings depends on the creditability of the witness.

Relying on hearsay evidence in administrative hearings depends on the creditability of the witness.
Saunders v City of New York, 273 AD2d 103, Motion for leave to appeal denied, 95 NY2d 766

New York City police officer Brian Saunders was terminated from his position after being found guilty of having assaulted and caused physical injuries to two former girlfriends.

Sauders appealed, contending that the Commissioner’s determination was not supported by substantial evidence because it was based on hearsay. The Appellate Division disagreed, holding that [t]he hearsay statements of the complainants were sufficiently probative to constitute substantial evidence.

According to the decision [h]earsay may constitute substantial evidence where, as here, it is sufficiently reliable and probative on the issues to be determined. This, in turn, depends on the credibility of the witnesses. The issue of the credibility of the witnesses at Sauders’ departmental disciplinary hearing, said the court, was a matter to be assessed by the Deputy Commissioner who presided at the trial.

Accordingly, said the court, determinations concerning the credibility of witnesses is largely beyond our power of review.

Successor union’s liability

Successor union’s liability
Parker v Metropolitan Trans. Authority, USDC, SDNY, [Justice Colleen McMahon]

Donald Parker, a police officer with the Metro-North Commuter Railroad (Metro-North), sued the Metropolitan Transportation Authority, Metro-North, the Metropolitan Transportation Authority Police Benevolent Association [MTA-PBA], the Metro-North Police Benevolent Association, and the Railroad Police Benevolent Association, claiming each had discriminated against him because of his age and disability.

Parker alleged that he was not promoted to sergeant by Metro-North and it removed his name from an internal sergeant promotion list because of discriminatory animus against him. Metro North said it removed Parker’s name from the list in accordance with the terms of the collective bargaining agreement.

Parker was 58 years of age when he took and passed the written examination for sergeant. Assigned to Poughkeepsie, Parker underwent by-pass heart surgery. When he returned to duty, he was temporarily reassigned to light duty in Yonkers.

In December 1991, while on light duty at Yonkers, Parker was offered a sergeant’s position in Grand Central Terminal, some 80 miles from his work site in Poughkeepsie but less than 30 miles from Yonkers. Under the collective bargaining agreement [CBA], an officer could decline a promotion without losing his or her seniority or standing on the promotion list if the reporting point for the new position is located more than 30 miles from the officer’s present reporting point. Parker declined the New York City promotion offer and Metro-North removed his name from the promotion list.*

One of the issues addressed by Judge Colleen McMahon was MTA-PBA’s motion for summary judgment dismissing it from the lawsuit. MTA-PBA pointed out that it was the successor union, and had not negotiated the CBA in question.

MTA-PBA was a separate labor organization from the Metro-North PBA. On January 1, 1998, the Metro-North and Long Island Railroad Police Departments were disbanded and replaced by the MTA Police Department. Subsequently PERB recognized MTA-PBA as the exclusive bargaining agent for MTA police officers including those employed by Metro-North.

MTA-PBA’s basic argument: because the events underlying the alleged acts of unlawful discrimination took place before the MTA-PBA was designated the bargaining agent, MTA-PBA could not have been a participant in any discrimination against [Parker], and thus, cannot be liable.

May MTA-PBA be held responsible for unlawful discrimination on the basis of its status as the successor union and thus subject to liability if Parker proves his charges? Judge McMahon said that said that [t]he little case law that appears to exist on the issue indicates that successor labor organizations may be held liable for the discriminatory acts of their predecessors, according to the same factors used to determine successor liability of corporations, citing an earlier Southern District ruling, EEOC v Local 638, 700 F. Supp. 739. In holding that a successor union could be liable under Title VII for the acts of its predecessor, Judge McMahon said that the Local 638 court considered four elements:

1. The relationship between the predecessor and successor (for example, whether the successor was formed by a merger of the predecessor);

2. Whether substantial continuity of assets and employees existed between the predecessor and successor;

3. Whether the successor had notice of the liabilities and obligations of the predecessor; and

4. The importance of the federal policies at stake.

Here, said Judge McMahon, MTA-PBA did not adequately address any of these factors, but simply argued, in conclusory fashion, that because the MTA-PBA did not come into existence until after [the actions taken by its predecessor were taken] it cannot be liable for any discrimination by the Metro-North PBA [resulting from such actions]. In view of this omission, said the court, that MTA-PBA was not entitled to summary judgment with respect to the claims against the MTA PBA.

The union president, Robert Novy, was also a named defendant. However, as the court said, individual defendants may not be liable under ADEA ... the same rule applies under ADA....

* The collective bargaining agreement also contained a non-discrimination clause that stated that there will be no discrimination against any officers because of race, color, creed, national origin or sex, but did not include any provision specifically prohibiting age or disability discrimination.

NYPPL trivia -

The most viewed summary of a court decision posted on New York Public Personnel Law during 2010:

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively
Matter of Rosenblum v New York City Conflicts of Interest Bd., 75 AD3d 426

This summary is posted at: http://publicpersonnellaw.blogspot.com/2010/07/any-administrative-action-in-nature-of.html

Performance in the tenure area is critical when determining an individual’s seniority in such tenure area the purposes of layoff

Performance in the tenure area is critical when determining an individual’s seniority in such tenure area the purposes of layoff
Appeal of Ralph Coviello against the Board of Cooperative Educational Services for the First Supervisory District of Erie County and John E. Snyder regarding layoff, Decisions of the Commissioner of Education, Decision No. 16,200

Ralph Coviello was certified to teach in electrical/electronic equipment occupations (repair and installation) and was granted a probationary appointment by BOCES on or about October 21, 1999 in the technical electronics tenure area.

John E. Snyder was certified to teach in the same tenure area, electrical/electronic equipment occupations (repair and installation), but was granted a probationary appointment by BOCES in the trade electricity tenure area on or about January 14, 2009, retroactive to September 22, 2008.*

In June 2010, BOCES voted to abolish one position in the technical electronics tenure area and advised Coviello that he was the least senior teacher in the technical electronics tenure area and that his employment was terminated. Coviello’s name was placed on a preferred eligibility list.

Coviello appealed, contending that he was improperly terminated in violation of Education Law §3013 and that he had greater seniority than Snyder, whose employment BOCES should have been terminated instead.

Addressing the merits of Coviello’s appeal, the Commissioner stated that Education Law §3013(2) provides that when a BOCES abolishes a position “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” Section 30-1.1(f) of the Commissioner’s regulations defines seniority as “length of service in a designated tenure area ....”

Here, BOCES abolished a position in the technical electronics tenure area. The principal issue in Coviello’s appeal is whether he was the least senior teacher in that tenure area.

The Commissioner, conceding that Coviello has been employed by BOCES for a longer period than Snyder, ruled that Coviello failed to demonstrate that Snyder served in the technical electronics tenure area. Coviello, in fact, contended that Snyder never taught any subjects in the area covered by his certification. BOCES confirmed this, stating that Snyder was appointed to the trade electricity tenure area and never performed any duties in the technical electronics tenure area.

In view of this, the Commissioner ruled that Coviello has failed to meet his burden of demonstrating that Snyder was the least senior teacher in the technical electronics tenure area because Snyder had never taught in that tenure area; Snyder had taught in the trade electricity tenure area, albeit without the requisite tenure area certification.

The Commissioner found that essentially Coviello argued that because the BOCES assigned Snyder to the trade electricity tenure area without regard to appropriate certification, “it should now assign him to a full-time position similarly teaching courses outside his certification on the grounds that he would have obtained the required certification had he been notified that there was a tenure area in trade electricity.” The Commissioner ruled that there was no basis for granting such relief and dismissed Coviello’s appeal.

* The Commissioner explained BOCES’ “retroactive action” as follows: “In June 2010, BOCES allegedly learned that in 2008 Snyder had applied for the wrong certificate to teach in the trade electricity tenure area and that the appropriate credential was the Initial Electrical 7-12 certificate. Upon notifying Snyder of this mistake, Snyder then applied for and was granted the Initial Electrical 7-12 certificate, effective September 1, 2010.”

As a coda to the decision the Commissioner said: … I note, however, that [Coviello] has made serious allegations about BOCES’ practices in assigning and retaining career and technical education teachers. BOCES acknowledges that it initially erred in assigning Snyder to teach trade electricity subjects without the appropriate certification and that it awarded him seniority credit in a tenure area for which he did not hold appropriate certification. I urge [BOCES] to review the certification of all of its career and technical education teachers and the tenure areas of such teachers to ensure compliance with Part 30 of the Rules of the Board of Regents and Part 80 of the Commissioner’s regulations.

This ruling illustrates yet another element in the often complex decision-making situations that confront administrators in their effort to make certain that the statutory seniority rights of individuals in a layoff situation are honored.

N.B. The decision involved individuals in serving in positions in the unclassified service. §80 of the Civil Service Law, which applies to individuals in the competitive class, provides, in pertinent part, that layoffs "shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.”

In contrast to “service in the system” within the meaning of §30-1.1 of the Commissioner’s Regulations, for the purposes of §80 of the Civil Service Law, once having attained permanent status an employee’s “seniority” is not truncated should he or she subsequently be appointed as a provisional employee or temporary employee or to a position in the exempt, noncompetitive or labor class or to a position in the unclassified service.

In the words of the statute, “A period of employment on a temporary or provisional basis, or in the unclassified service, immediately preceded and followed by permanent service in the classified service, shall not constitute an interruption of continuous service for the purposes of this section; nor shall a period of leave of absence without pay pursuant to law or the rules of the civil service commission having jurisdiction, or any period during which an employee is suspended from his position pursuant to this section, constitute an interruption of continuous service for the purposes of this section.”

Further, seniority is measured from the individual’s effective date of initial, uninterrupted, permanent appointment and not from the date he or she attained tenure in such position.

§80.2 of the Civil Service Law measures “continuous service” from the individual’s date of his or her first appointment on a permanent basis in the classified service followed by continuous service in the classified service on a permanent basis up to the time of the abolition or reduction of the competitive class position. Further, an employee who has resigned and who has been reinstated or reappointed in the service within one year thereafter shall, for the purposes of such section, be deemed to have continuous service.

§80-a of the Civil Service Law, which applies to employees of the State as an employer, provides similar protection for those State employees serving in a position in the non-competitive class.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16200.htm

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