Termination for inability to produce proof of possession of a required license or certificate is not a dismissal in the nature of discipline
Matter of Cravatta v New York State Dept. of Transp., 2010 NY Slip Op 06952, decided on October 1, 2010, Appellate Division, Fourth Department
Michael J. Cravatta, a Highway Maintenance Worker with the NYS Department of Transportation, was required to possess a valid New York State Class B Commercial Drivers License [CDL] as a condition of his employment by the Department.
When Cravatta’s CDL was suspended, the Department terminated his employment without his being given a pre-termination hearing.
Cravatta sued and Supreme Court granted his petition seeking to annul the determination terminating him from his position. Transportation appealed the lower court’s ruling.
The Appellate Division, stating that “Supreme Court erred …,” reversed the lower court “on the law” and dismissed Cravatta’s petition in its entirety.
The court said that as Cravatta was “required to maintain” a CDL, he was properly terminated after his CDL was suspended because he lacked one of the credentials required for his position.
Further, said the court, “Cravatta's termination was not disciplinary in nature and thus was subject to neither the arbitration clause in the collective bargaining agreement nor the provisions of Civil Service Law §75,” citing Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275.
NYPPL Comment: Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Indeed, it could be argued that the employer has no alternative, as it could be considered unlawful to permit an unlicensed individual to perform the duties for which a license is required.
Although the loss of a required drivers license if frequently the basis for an employee being summarily terminated, the loss of an attorney’s license to practice law or the expiration of a temporary permit to teach would also result such action.
All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position and provide the individual a reasonable opportunity to produce a valid license or certificate.
Essentially, the courts have held that where an individual is required to hold a valid license in order to perform the duties of the position and the employee losses the required license or it expires, the individual cannot be allowed to perform the duties of the position.
This proposition was explored by the Appellate Division in Martin ex rel Lekkas, 86 AD2d 712.
Lekkas, an Assistant Clinical Physician had been permanently appointed to a position in the Office of Mental Retardation and Developmental Disabilities,. He was subsequently terminated from his position without notice or hearing because he did not obtain the required license to practice medicine in New York State issued by the Education Department (Education Law Section 8522).*
The Appellate Division affirmed a lower court ruling that Lekkas’ termination was unlawful.
The court explained that although it was lawful to summarily discharge an employee without notice and hearing if the worker is unable to produce his or her required license, this could be done only if the duties being performed required the possession of the license.
According to the record, Lekkas was performing administrative duties rather than “practicing medicine.” As he was not engaged in the practice of medicine, Lekkas was not “unqualified” with respect to performing his administrative duties without the license that would have been otherwise required had he been engaged in the practice of medicine.
* The issue arose after the Education Law was amended to require persons previously appointed as physicians to obtain a license to practice medicine. Lekkas had been appointed to the position Assistant Clinical Physician prior to the amendment but had not obtained a New York State license to practice medicine within the prescribed time period.
The Cravatta decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06952.htm
NYPPL
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 COMPOSING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS.
Oct 6, 2010
If a court finds that an administrative penalty is shocking to one's sense of fairness” it must remand the matter for a new penalty determination
If a court finds that an administrative penalty is shocking to one's sense of fairness” it must remand the matter for a new penalty determination
Matter of Liguori v Beloten, 2010 NY Slip Op 06739, Decided on September 30, 2010, Appellate Division, Third Department
Dr. James M. Liguori pleaded guilty to one specification of professional misconduct based upon his failure to maintain adequate records and agreed to a penalty consisting of “a censure and reprimand,” being on probation for three years under the supervision of a practice monitor, to pay a $25,000 fine and to perform “100 hours of nonmedical community service.”
Subsequently the Chair of the Workers' Compensation Board, Robert E. Beloten, removed Dr. Liguori’s name from the Board’s list of eligible providers.*
When Liguori’s request for reconsideration and, or, administrative review of the removal of his name from the list of “WCB providers” was denied, he commenced a CPLR article 78 proceeding seeking to annul the Chair’s determination.
Supreme Court granted Liguori’s petition, finding that the Chairman Beloten had “failed to adequately explain the basis for [Liguori’s] removal from the list of authorized providers and remitted the matter for further proceedings”.
In response to the Board’s issuing a new determination that, again, removed his name from the list of authorized providers that set out its basis for Liguori’s removal, Liguori again filed an Article 78 petition contending that the Board’s second determination was arbitrary and capricious and violated his right to due process.
Supreme Court granted Liguori’s petition. Although the court found that the explanation for Liguori’s removal was adequate, it ruled that “the Chair's determination nonetheless was arbitrary and capricious” and ordered the Board to restore Liguori to its list of eligible providers. The Board appealed.
The Appellate Division reversed the lower court’s ruling, explaining that "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law," citing the Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 – the so-called Pell Doctrine.
The Pell Doctrine stands for the proposition that courts must uphold the penalty imposed by an administrative body unless it is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness."
The Appellate Division said that in determining if a penalty meets the Pell standard, “the reviewing court may neither second-guess the administrative agency nor substitute its own judgment for the action taken.” Further, said the Appellate Division, should the court determine “that the penalty imposed cannot stand, the court may not fashion a reduced penalty” but must remit the matter to the agency for a redetermination of the penalty to be imposed.
As to its basis for vacating the Supreme Court’s determination, the Appellate Division said that it had concluded that based on its review of the record “we cannot say that the penalty imposed constitutes an abuse of discretion as a matter of law.”
* WCB providers are authorized to render care and treatment to individuals who had suffered work-related injuries.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06739.htm
NYPPL
Matter of Liguori v Beloten, 2010 NY Slip Op 06739, Decided on September 30, 2010, Appellate Division, Third Department
Dr. James M. Liguori pleaded guilty to one specification of professional misconduct based upon his failure to maintain adequate records and agreed to a penalty consisting of “a censure and reprimand,” being on probation for three years under the supervision of a practice monitor, to pay a $25,000 fine and to perform “100 hours of nonmedical community service.”
Subsequently the Chair of the Workers' Compensation Board, Robert E. Beloten, removed Dr. Liguori’s name from the Board’s list of eligible providers.*
When Liguori’s request for reconsideration and, or, administrative review of the removal of his name from the list of “WCB providers” was denied, he commenced a CPLR article 78 proceeding seeking to annul the Chair’s determination.
Supreme Court granted Liguori’s petition, finding that the Chairman Beloten had “failed to adequately explain the basis for [Liguori’s] removal from the list of authorized providers and remitted the matter for further proceedings”.
In response to the Board’s issuing a new determination that, again, removed his name from the list of authorized providers that set out its basis for Liguori’s removal, Liguori again filed an Article 78 petition contending that the Board’s second determination was arbitrary and capricious and violated his right to due process.
Supreme Court granted Liguori’s petition. Although the court found that the explanation for Liguori’s removal was adequate, it ruled that “the Chair's determination nonetheless was arbitrary and capricious” and ordered the Board to restore Liguori to its list of eligible providers. The Board appealed.
The Appellate Division reversed the lower court’s ruling, explaining that "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law," citing the Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 – the so-called Pell Doctrine.
The Pell Doctrine stands for the proposition that courts must uphold the penalty imposed by an administrative body unless it is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness."
The Appellate Division said that in determining if a penalty meets the Pell standard, “the reviewing court may neither second-guess the administrative agency nor substitute its own judgment for the action taken.” Further, said the Appellate Division, should the court determine “that the penalty imposed cannot stand, the court may not fashion a reduced penalty” but must remit the matter to the agency for a redetermination of the penalty to be imposed.
As to its basis for vacating the Supreme Court’s determination, the Appellate Division said that it had concluded that based on its review of the record “we cannot say that the penalty imposed constitutes an abuse of discretion as a matter of law.”
* WCB providers are authorized to render care and treatment to individuals who had suffered work-related injuries.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06739.htm
NYPPL
Prima facie case of unlawful discrimination may be rebutted by a presentation of a non-discriminatory reason for the employment decision
Prima facie case of unlawful discrimination may be rebutted by a presentation of a non-discriminatory reason for the employment decision
Matter of Monsay v New York State Div. of Human Rights, 2010 NY Slip Op 06928, Decided on October 1, 2010, Appellate Division, Fourth Department
Evelyn H. Monsay filed charges against the State University College at Oswego with the New York State Division of Human Rights alleging unlawful discrimination based on age and gender.
The Division found that Oswego had not unlawfully discriminate against Monsay on the basis of gender or age and dismissed her complaint.
Monsay appealed but the Appellate Division sustained the Division’s determination, hold that it was supported by substantial evidence.
The court then observed that “Even assuming, arguendo, that [Monsay] established a prima facie case of gender or age discrimination, we conclude that the College rebutted the presumption of discrimination created by [Monsay’s] by presenting the requisite "legitimate, independent, and nondiscriminatory reasons to support its employment decision[s."
It should be noted that once a prima facie case of alleged unlawful discrimination is rebutted by the employer with “legitimate, independent and nondiscriminatory reasons” for its decision, the burden of going forward shifted to Monsay to demonstrate that the explanation offered by Oswego was mere subterfuge for its unlawful discriminatory actions. Apparently Monsay was unable to do so to the satisfaction of the Division of Human Rights.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06928.htm
NYPPL
Matter of Monsay v New York State Div. of Human Rights, 2010 NY Slip Op 06928, Decided on October 1, 2010, Appellate Division, Fourth Department
Evelyn H. Monsay filed charges against the State University College at Oswego with the New York State Division of Human Rights alleging unlawful discrimination based on age and gender.
The Division found that Oswego had not unlawfully discriminate against Monsay on the basis of gender or age and dismissed her complaint.
Monsay appealed but the Appellate Division sustained the Division’s determination, hold that it was supported by substantial evidence.
The court then observed that “Even assuming, arguendo, that [Monsay] established a prima facie case of gender or age discrimination, we conclude that the College rebutted the presumption of discrimination created by [Monsay’s] by presenting the requisite "legitimate, independent, and nondiscriminatory reasons to support its employment decision[s."
It should be noted that once a prima facie case of alleged unlawful discrimination is rebutted by the employer with “legitimate, independent and nondiscriminatory reasons” for its decision, the burden of going forward shifted to Monsay to demonstrate that the explanation offered by Oswego was mere subterfuge for its unlawful discriminatory actions. Apparently Monsay was unable to do so to the satisfaction of the Division of Human Rights.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06928.htm
NYPPL
Vacating an arbitration award
Vacating an arbitration award
Local 756 ex rel Westfall v Cohoes, 263 AD2d 652
The Westfall decision concerned an arbitration award on a ruling involving the denial of Section 207-c benefits. It sets out some of the basic elements considered by courts when they are asked to vacate an arbitration award.
The case also shows the distinction that can be made between a “job related” illness, such as stress, and an injury incurred “in the performance of duty” for the purposes of Section 207-a or Section 207-c.
Cohoes and Local 756 negotiated a Taylor Law provision in which it was agreed that Section 207-a and Section 207-c disputes would be resolved in accordance with the grievance procedures set out in the collective bargaining agreement.
Kenneth Westfall, a police lieutenant employed by the City of Cohoes, filed applications in March 1997 and in June 1997 seeking 207-c benefits. The city rejected both of Westfall’s applications, concluding that Westfall’s injury -- symptoms associated with stress and depression -- was not sustained in the performance of his duties.
The Appellate Division commented that “Westfall suffered from stress and depression as a result of conflicts with a supervisor” and that these episodes of stress and depression led to absences.
The issue was submitted to arbitration in accordance with the grievance procedure set out in the Taylor Law agreement between the city and the union. Further, the parties had stipulated that the question for the arbitrator to resolve was whether Westfall “[s]hould ... receive [General Municipal Law Section] 207-c benefits for [his] illness”.
In the course of the arbitration, there was testimony from three physicians and a clinical psychologist, each of whom had examined Westfall. All agreed that Westfall suffered from depression, but that this illness was not caused by actual police duties but, rather, from an interpersonal conflict with a superior.
Considering “the uniqueness of the hazards faced by police officers,” the arbitrator said that Westfall’s illness, although job related, was not a result of the performance of his police duties and therefore not the type of illness encompassed under the statute. The conclusion: Westfall “should not receive [Section] 207-c benefits.”
Local 756 filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking a court order vacating the award. It contended that (1) the award was irrational or, in the alternative, (2) the award violated public policy. The union’s petition was dismissed by the Supreme Court and the local appealed, asking the Appellate Division review the matter.
The Appellate Division agreed that a court may vacate an arbitration award if it finds that the award is violative of a strong public policy or it is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power. The problem here was that the Appellate Division concluded that the arbitrator’s award did not offend any standard.
The Appellate Division also commented that “[t]he power of the courts to intervene is even more restricted when the arbitrator’s interpretation resolves the question submitted, and not merely one aspect of the dispute”.
As to the local’s claim that the award was “irrational,” the Appellate Division said that the arbitrator’s interpretation of the statute, even though the interpretation “may have been erroneous or inconsistent with seemingly relevant decisional authority,” under the standard that the courts must use when considering vacating arbitration awards, “we are unable to conclude that the arbitration award denying General Municipal Law Section 207-c benefits under these circumstance was totally irrational.”
On this point the court, citing Silverman [Benmor Coats], 61 NY2d 299, said that an arbitrator is not bound by principles of substantive law and may do justice as he or she sees fit, applying his or her own sense of law and equity to the facts of the subject dispute.
Turning to the local’s public policy argument, the Appellate Division said that it was not persuaded that the award violates strong public policy, commenting that “the Court of Appeals has repeatedly cautioned that the public policy exception is narrow and an award may be set aside on this ground “[o]nly when the award contravenes a strong public policy, almost invariably involving an important constitutional or statutory duty or responsibility.”
Before a court may intervene by vacating an arbitration award on public policy grounds, it “must be able to examine an arbitration agreement or an award on its face, without engaging in extended fact-finding or legal analysis, and conclude that public policy precludes its enforcement,” quoting Matter of Sprinzen [Nomberg], 46 NY2d 623, 631). Finding that Local 756’s contentions did not satisfy this rigorous standard, it affirmed the lower court’s decision denying the local’s application to vacate the award.
.
Local 756 ex rel Westfall v Cohoes, 263 AD2d 652
The Westfall decision concerned an arbitration award on a ruling involving the denial of Section 207-c benefits. It sets out some of the basic elements considered by courts when they are asked to vacate an arbitration award.
The case also shows the distinction that can be made between a “job related” illness, such as stress, and an injury incurred “in the performance of duty” for the purposes of Section 207-a or Section 207-c.
Cohoes and Local 756 negotiated a Taylor Law provision in which it was agreed that Section 207-a and Section 207-c disputes would be resolved in accordance with the grievance procedures set out in the collective bargaining agreement.
Kenneth Westfall, a police lieutenant employed by the City of Cohoes, filed applications in March 1997 and in June 1997 seeking 207-c benefits. The city rejected both of Westfall’s applications, concluding that Westfall’s injury -- symptoms associated with stress and depression -- was not sustained in the performance of his duties.
The Appellate Division commented that “Westfall suffered from stress and depression as a result of conflicts with a supervisor” and that these episodes of stress and depression led to absences.
The issue was submitted to arbitration in accordance with the grievance procedure set out in the Taylor Law agreement between the city and the union. Further, the parties had stipulated that the question for the arbitrator to resolve was whether Westfall “[s]hould ... receive [General Municipal Law Section] 207-c benefits for [his] illness”.
In the course of the arbitration, there was testimony from three physicians and a clinical psychologist, each of whom had examined Westfall. All agreed that Westfall suffered from depression, but that this illness was not caused by actual police duties but, rather, from an interpersonal conflict with a superior.
Considering “the uniqueness of the hazards faced by police officers,” the arbitrator said that Westfall’s illness, although job related, was not a result of the performance of his police duties and therefore not the type of illness encompassed under the statute. The conclusion: Westfall “should not receive [Section] 207-c benefits.”
Local 756 filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking a court order vacating the award. It contended that (1) the award was irrational or, in the alternative, (2) the award violated public policy. The union’s petition was dismissed by the Supreme Court and the local appealed, asking the Appellate Division review the matter.
The Appellate Division agreed that a court may vacate an arbitration award if it finds that the award is violative of a strong public policy or it is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power. The problem here was that the Appellate Division concluded that the arbitrator’s award did not offend any standard.
The Appellate Division also commented that “[t]he power of the courts to intervene is even more restricted when the arbitrator’s interpretation resolves the question submitted, and not merely one aspect of the dispute”.
As to the local’s claim that the award was “irrational,” the Appellate Division said that the arbitrator’s interpretation of the statute, even though the interpretation “may have been erroneous or inconsistent with seemingly relevant decisional authority,” under the standard that the courts must use when considering vacating arbitration awards, “we are unable to conclude that the arbitration award denying General Municipal Law Section 207-c benefits under these circumstance was totally irrational.”
On this point the court, citing Silverman [Benmor Coats], 61 NY2d 299, said that an arbitrator is not bound by principles of substantive law and may do justice as he or she sees fit, applying his or her own sense of law and equity to the facts of the subject dispute.
Turning to the local’s public policy argument, the Appellate Division said that it was not persuaded that the award violates strong public policy, commenting that “the Court of Appeals has repeatedly cautioned that the public policy exception is narrow and an award may be set aside on this ground “[o]nly when the award contravenes a strong public policy, almost invariably involving an important constitutional or statutory duty or responsibility.”
Before a court may intervene by vacating an arbitration award on public policy grounds, it “must be able to examine an arbitration agreement or an award on its face, without engaging in extended fact-finding or legal analysis, and conclude that public policy precludes its enforcement,” quoting Matter of Sprinzen [Nomberg], 46 NY2d 623, 631). Finding that Local 756’s contentions did not satisfy this rigorous standard, it affirmed the lower court’s decision denying the local’s application to vacate the award.
.
Workers’ Compensation Leave - Civil Service Law Section 71
House v NYS Office of Mental Health, 262 AD2d 929
Martha I. House, a keyboard specialist at Richard H. Hutchings Psychiatric Center, suffered a work-related injury in December 1991. As a result she was frequently absent from work. The psychiatric center deemed these absences to be pursuant to workers’ compensation leave under Civil Service Law Section 71.
When the cumulative total of her Section 71 absences exceeded one year, the appointing authority elected to terminate her from her position. House was told that she could apply for reinstatement to her former position if she could demonstrate that she was medically fit.*
House submitted a note from her physician stating that she was medically fit. The Psychiatric Center referred her to a physician employed by the State's Employee Health Service for an evaluation. The EHS physician stated that House was “too symptomatic to return to work and perform the full duties of her position.” Based on the EHS physician's evaluation House was terminated from her position.
When House sued seeking reinstatement to her job and back pay a State Supreme Court decided that the Center had not given House “proper notice of the procedure for requesting a post-termination hearing, resulting in the denial of her due process right to an administrative appeal.”
Supreme Court remitted the matter for an administrative hearing on the issue of House’s medical condition and her ability to perform her job-related duties at the time of her termination. It declined, however, to order either House’s reinstatement or back salary at this point in the process.
Both House and the employer appealed. The Appellate Division ruled although House was entitled to a post-termination hearing, until that administrative remedy has been exhausted, a resolution of her other demands would be premature.
The Appellate Division said that once it has been determined by the appointing authority’s physician that an employee is unfit to serve, he or she cannot be restored to employment until there is a finding that the employee is medically fit to perform the duties of the position.
Thus, the Supreme Court’s judgment remitting the matter for an administrative hearing to develop the record regarding petitioner’s medical fitness was appropriate.
N.B. This decision suggests that the due process procedures available to an individual on leave pursuant to Section 71 have been confused with the administrative procedures required to be followed in the event the appointing authority wishes to place the individual on involuntary leave pursuant to Section 72 of the Civil Service Law, i.e., absence due to an injury or disease that is not job-related. Further, if the appointing authority subsequently elects to terminate the employee after he or she has been continuously absent from his or her position for one year or longer pursuant to Section 72, it may due so in accordance with the provisions set out in Section 73 of the Civil Service Law.
Insofar as Section 71 leave is concerned, the appointing authority has the discretion, but is not required, to terminate an employee on Section 71 leave once the individual has been absent from work due to the underlying injury or disease for a cumulative period of at least one year. Presumably the termination is effected while the individual is actually absent from work and on leave pursuant to Section 71.
Section 71 then provides, in pertinent part, that in the event an employee is terminated pursuant to Section 71 of the Civil Service Law "Such employee may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission."
Understandably, it is the individual's, rather than the employer's responsibilty to make such an application, as only the individual can determine if his or her disability is no longer an impediment to his or her performing the duties of his or her position.
Section 71 then provides that "If, upon such medical examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his or her former position, he or she shall be reinstated to his or her former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant
position for which he or she was eligible for transfer."
If the medical officer does not certify the individual is physically and mentally fit to perform the duties of the position, presumably the individual could file an Article 78 petition challenging the determination.
In any event, if the individual is not determined to be qualified to return to his or her position, he or she may make additional applications for evaluation thereafter.
* In contrast, Section 72 of the Civil Service Law provides for leaves of absences required because of non-work related injuries or disease. An individual who has been absent for a consecutive one-year period may be terminated pursuant to Section 73 of the Civil Service Law.
.
House v NYS Office of Mental Health, 262 AD2d 929
Martha I. House, a keyboard specialist at Richard H. Hutchings Psychiatric Center, suffered a work-related injury in December 1991. As a result she was frequently absent from work. The psychiatric center deemed these absences to be pursuant to workers’ compensation leave under Civil Service Law Section 71.
When the cumulative total of her Section 71 absences exceeded one year, the appointing authority elected to terminate her from her position. House was told that she could apply for reinstatement to her former position if she could demonstrate that she was medically fit.*
House submitted a note from her physician stating that she was medically fit. The Psychiatric Center referred her to a physician employed by the State's Employee Health Service for an evaluation. The EHS physician stated that House was “too symptomatic to return to work and perform the full duties of her position.” Based on the EHS physician's evaluation House was terminated from her position.
When House sued seeking reinstatement to her job and back pay a State Supreme Court decided that the Center had not given House “proper notice of the procedure for requesting a post-termination hearing, resulting in the denial of her due process right to an administrative appeal.”
Supreme Court remitted the matter for an administrative hearing on the issue of House’s medical condition and her ability to perform her job-related duties at the time of her termination. It declined, however, to order either House’s reinstatement or back salary at this point in the process.
Both House and the employer appealed. The Appellate Division ruled although House was entitled to a post-termination hearing, until that administrative remedy has been exhausted, a resolution of her other demands would be premature.
The Appellate Division said that once it has been determined by the appointing authority’s physician that an employee is unfit to serve, he or she cannot be restored to employment until there is a finding that the employee is medically fit to perform the duties of the position.
Thus, the Supreme Court’s judgment remitting the matter for an administrative hearing to develop the record regarding petitioner’s medical fitness was appropriate.
N.B. This decision suggests that the due process procedures available to an individual on leave pursuant to Section 71 have been confused with the administrative procedures required to be followed in the event the appointing authority wishes to place the individual on involuntary leave pursuant to Section 72 of the Civil Service Law, i.e., absence due to an injury or disease that is not job-related. Further, if the appointing authority subsequently elects to terminate the employee after he or she has been continuously absent from his or her position for one year or longer pursuant to Section 72, it may due so in accordance with the provisions set out in Section 73 of the Civil Service Law.
Insofar as Section 71 leave is concerned, the appointing authority has the discretion, but is not required, to terminate an employee on Section 71 leave once the individual has been absent from work due to the underlying injury or disease for a cumulative period of at least one year. Presumably the termination is effected while the individual is actually absent from work and on leave pursuant to Section 71.
Section 71 then provides, in pertinent part, that in the event an employee is terminated pursuant to Section 71 of the Civil Service Law "Such employee may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission."
Understandably, it is the individual's, rather than the employer's responsibilty to make such an application, as only the individual can determine if his or her disability is no longer an impediment to his or her performing the duties of his or her position.
Section 71 then provides that "If, upon such medical examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his or her former position, he or she shall be reinstated to his or her former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant
position for which he or she was eligible for transfer."
If the medical officer does not certify the individual is physically and mentally fit to perform the duties of the position, presumably the individual could file an Article 78 petition challenging the determination.
In any event, if the individual is not determined to be qualified to return to his or her position, he or she may make additional applications for evaluation thereafter.
* In contrast, Section 72 of the Civil Service Law provides for leaves of absences required because of non-work related injuries or disease. An individual who has been absent for a consecutive one-year period may be terminated pursuant to Section 73 of the Civil Service Law.
.
Adjusting a school's annual budget
Adjusting a school's annual budget
Leman v South Orangetown CSD, Decisions of the Commissioner of Education #14166
South Orangetown Central School District’s school superintendent position became vacant April 1, 1998. In preparing its budget for the 1998-99 school year, the district included an appropriation of $131,885 for the superintendent’s salary line as the amount it expected would be required to employ a new superintendent.
The district later entered into a contract with its new superintendent, Eileen Gress, that provided for an annual salary of $142,000 plus benefits. The total amount of Gress’ compensation was disclosed as required by Section 1716 of the Education Law. The district adopted a second, revised budget reflecting Gress’ compensation.
James Leman filed an appeal with the Commissioner of Education contending, among other things, that the board’s actions were improper as they involved “changes ... to aid the central administration portion of the budget.” He asked the Commissioner to void the district’s contract with Gress and to “direct the district to enter into new negotiations to fill the superintendent position.”
The Commissioner dismissed Leman’s appeal on the merits noting that the “actual figure for the superintendent’s salary and benefits was included in the proposed budget that was made available at the ... public hearing and presented to the voters....”
This, said the Commissioner, complied with the requirements set out in Section 1804.4 of the Education Law.
Section 1804.4 requires the board of a central school district to prepare and present a school budget at a budget hearing “at least 7 but not more than 14 days before the district meeting at which the budget vote will occur.” The record, said the Commissioner, showed that the district met this requirement.
.
Leman v South Orangetown CSD, Decisions of the Commissioner of Education #14166
South Orangetown Central School District’s school superintendent position became vacant April 1, 1998. In preparing its budget for the 1998-99 school year, the district included an appropriation of $131,885 for the superintendent’s salary line as the amount it expected would be required to employ a new superintendent.
The district later entered into a contract with its new superintendent, Eileen Gress, that provided for an annual salary of $142,000 plus benefits. The total amount of Gress’ compensation was disclosed as required by Section 1716 of the Education Law. The district adopted a second, revised budget reflecting Gress’ compensation.
James Leman filed an appeal with the Commissioner of Education contending, among other things, that the board’s actions were improper as they involved “changes ... to aid the central administration portion of the budget.” He asked the Commissioner to void the district’s contract with Gress and to “direct the district to enter into new negotiations to fill the superintendent position.”
The Commissioner dismissed Leman’s appeal on the merits noting that the “actual figure for the superintendent’s salary and benefits was included in the proposed budget that was made available at the ... public hearing and presented to the voters....”
This, said the Commissioner, complied with the requirements set out in Section 1804.4 of the Education Law.
Section 1804.4 requires the board of a central school district to prepare and present a school budget at a budget hearing “at least 7 but not more than 14 days before the district meeting at which the budget vote will occur.” The record, said the Commissioner, showed that the district met this requirement.
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Applying for disability retirement
Applying for disability retirement
Grossman v McCall, App. Div., Third Dept., 262 AD2d 923, Motion for leave to appeal denied, 94 NY2d 765, Appeal on Constitutional grounds dismissed, 94 NY2d 796
Retirement and Social Security Law Section 62(aa)(2), allows a member of a public retirement system eligible for ordinary disability retirement to file an application for benefits if (1) the member is still in service at the time of the application or (2) the member applies within 90 days from the date of his or her discontinuance of service. The Appellate Division’s decision in the Grossman case illustrates that if an application for ordinary disability retirement is untimely, the application will be rejected -- even if there are extenuating circumstances.
The case arose after the Comptroller disapproved the application for ordinary disability retirement filed on behalf of Herbert E. Grossman by his wife. Grossman, a psychologist with the Bronx Developmental Services, sustained an injury at his home. He was terminated from his position effective July 27, 1990.
More than three years later his wife, Marsha Grossman, acting under a power of attorney, filed an application with the New York State Employees’ Retirement System [ERS] for ordinary disability retirement benefits. Although Mrs. Grossman proved that her husband “was mentally, psychiatrically and neurologically disabled after the accident,” the fact that the application was not filed within the time allowed by Section 62(aa)(2) proved critical. The Appellate Division said that Grossman’s illness did not toll the mandated filing period.
The court also rejected Mrs. Grossman’s contention that her husband had a property interest in the benefit and that the rejection of his application constituted a denial of a property right without due process. The Appellate Division said that filing of a timely application “constitutes a condition precedent to the ripening of any right to these benefits from which a claim of due process can arise.”
The decision also reports that ERS “received a request on [Grossman’s] behalf for an application for benefits by telephone on September 25, 1990 and that an application was sent to his home on October 3, 1990 -- when sufficient time existed for [Grossman] to have filed a timely application.” In addition, said the court, “the record reflects that [Grossman] did, in fact, have sufficient capacity to timely file [for], and therefore receive, social security disability benefits.”
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Grossman v McCall, App. Div., Third Dept., 262 AD2d 923, Motion for leave to appeal denied, 94 NY2d 765, Appeal on Constitutional grounds dismissed, 94 NY2d 796
Retirement and Social Security Law Section 62(aa)(2), allows a member of a public retirement system eligible for ordinary disability retirement to file an application for benefits if (1) the member is still in service at the time of the application or (2) the member applies within 90 days from the date of his or her discontinuance of service. The Appellate Division’s decision in the Grossman case illustrates that if an application for ordinary disability retirement is untimely, the application will be rejected -- even if there are extenuating circumstances.
The case arose after the Comptroller disapproved the application for ordinary disability retirement filed on behalf of Herbert E. Grossman by his wife. Grossman, a psychologist with the Bronx Developmental Services, sustained an injury at his home. He was terminated from his position effective July 27, 1990.
More than three years later his wife, Marsha Grossman, acting under a power of attorney, filed an application with the New York State Employees’ Retirement System [ERS] for ordinary disability retirement benefits. Although Mrs. Grossman proved that her husband “was mentally, psychiatrically and neurologically disabled after the accident,” the fact that the application was not filed within the time allowed by Section 62(aa)(2) proved critical. The Appellate Division said that Grossman’s illness did not toll the mandated filing period.
The court also rejected Mrs. Grossman’s contention that her husband had a property interest in the benefit and that the rejection of his application constituted a denial of a property right without due process. The Appellate Division said that filing of a timely application “constitutes a condition precedent to the ripening of any right to these benefits from which a claim of due process can arise.”
The decision also reports that ERS “received a request on [Grossman’s] behalf for an application for benefits by telephone on September 25, 1990 and that an application was sent to his home on October 3, 1990 -- when sufficient time existed for [Grossman] to have filed a timely application.” In addition, said the court, “the record reflects that [Grossman] did, in fact, have sufficient capacity to timely file [for], and therefore receive, social security disability benefits.”
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Employment contracts in public education
Employment contracts in public education
Brousseau v Shenendehowa CSD, Decisions of the Commissioner of Education #14193
The Shenendehowa Central School District and its Director of Finance, Susan M. Martin, signed an “employment agreement” for the period May 13, 1998 through June 30, 1999 setting out the terms and conditions of Martin’s employment with the district. The agreement also provided that it could be “renewed annually thereafter.”
Eugene Brousseau challenged the authority of the school board to enter into such an agreement with its Director of Finance. He asked Commissioner of Education Richard P. Mills to rescind the agreement. The district, in support of its action, argued that it had authority under Education Law Section 1709(33) “to enter into employment agreements establishing the terms of employment for its employees.”
The Commissioner commenced his analysis by commenting that “there are a limited number of provisions in the Education Law that expressly authorize a board of education to employ specified individuals” such as librarians, “qualified teachers,” an auditor and a superintendent.
However, said the Commissioner, the fact that there are no express provisions for the employment of individuals other than those specifically provided for by law “does not foreclose a board from employing individuals in such positions as are necessary to operate and maintain the school district, because the employment of such persons is a reasonable and necessary means for the board to fulfill its duty to superintend, manage, and control the affairs of the district pursuant to [Education Law] Section 1709(33).”
The Commissioner dismissed Brousseau’s appeal noting that:
1. The authority to contract with employees is implicit in the act of employing such individuals -- hiring an individual “itself creates a contract, whether express or implied, oral or written;”
2. A board of education, “as a public authority,” has a common-law right to contract with teachers and other necessary personnel;” and
3. A board of education may enter into contracts with its employees “to the extent the contract is not inconsistent with other statutory conditions,” citing Courtemanche v Enlarged City School District of Middletown, 686 F.Supp.2d 1025.
Therefore, the Shenendehowa board’s entering into a contract with Martin concerning the terms and conditions of her employment “is authorized as an implicit, reasonably necessary power of the board ... and in addition is authorized pursuant to the board’s common law right to contract.”
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Brousseau v Shenendehowa CSD, Decisions of the Commissioner of Education #14193
The Shenendehowa Central School District and its Director of Finance, Susan M. Martin, signed an “employment agreement” for the period May 13, 1998 through June 30, 1999 setting out the terms and conditions of Martin’s employment with the district. The agreement also provided that it could be “renewed annually thereafter.”
Eugene Brousseau challenged the authority of the school board to enter into such an agreement with its Director of Finance. He asked Commissioner of Education Richard P. Mills to rescind the agreement. The district, in support of its action, argued that it had authority under Education Law Section 1709(33) “to enter into employment agreements establishing the terms of employment for its employees.”
The Commissioner commenced his analysis by commenting that “there are a limited number of provisions in the Education Law that expressly authorize a board of education to employ specified individuals” such as librarians, “qualified teachers,” an auditor and a superintendent.
However, said the Commissioner, the fact that there are no express provisions for the employment of individuals other than those specifically provided for by law “does not foreclose a board from employing individuals in such positions as are necessary to operate and maintain the school district, because the employment of such persons is a reasonable and necessary means for the board to fulfill its duty to superintend, manage, and control the affairs of the district pursuant to [Education Law] Section 1709(33).”
The Commissioner dismissed Brousseau’s appeal noting that:
1. The authority to contract with employees is implicit in the act of employing such individuals -- hiring an individual “itself creates a contract, whether express or implied, oral or written;”
2. A board of education, “as a public authority,” has a common-law right to contract with teachers and other necessary personnel;” and
3. A board of education may enter into contracts with its employees “to the extent the contract is not inconsistent with other statutory conditions,” citing Courtemanche v Enlarged City School District of Middletown, 686 F.Supp.2d 1025.
Therefore, the Shenendehowa board’s entering into a contract with Martin concerning the terms and conditions of her employment “is authorized as an implicit, reasonably necessary power of the board ... and in addition is authorized pursuant to the board’s common law right to contract.”
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Oct 5, 2010
Suspended employee found to have submitted required documents at the earliest date practicable
Suspended employee found to have submitted required documents at the earliest date practicable
NYC Department of Sanitation v McCaffrey, OATH Index #2518/10
OATH Administrative Law Judge Alessandra Zorgniotti recommended dismissal of charges that a sanitation worker, John McCaffrey, had failed to report to the clinic on two days as ordered and had failed to submit adequate documentation of his claim that he was unable to travel on those dates.
Judge Zorgniotti found McCaffrey had a legitimate medical excuse, which prevented him from traveling on those days.
Under Department rules the worker had five business days from the date he was ordered to appear and supply the clinic with a note, but McCaffrey was not permitted to submit one because he was on suspension.
Instead, McCaffrey submitted the note on the day his suspension was lifted. Because McCaffrey had submitted the note at the earliest practicable time following the termination of his suspension, Judge Zorgniotti said she found the submission timely under relevant circumstances.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2518.pdf
NYPPL
NYC Department of Sanitation v McCaffrey, OATH Index #2518/10
OATH Administrative Law Judge Alessandra Zorgniotti recommended dismissal of charges that a sanitation worker, John McCaffrey, had failed to report to the clinic on two days as ordered and had failed to submit adequate documentation of his claim that he was unable to travel on those dates.
Judge Zorgniotti found McCaffrey had a legitimate medical excuse, which prevented him from traveling on those days.
Under Department rules the worker had five business days from the date he was ordered to appear and supply the clinic with a note, but McCaffrey was not permitted to submit one because he was on suspension.
Instead, McCaffrey submitted the note on the day his suspension was lifted. Because McCaffrey had submitted the note at the earliest practicable time following the termination of his suspension, Judge Zorgniotti said she found the submission timely under relevant circumstances.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2518.pdf
NYPPL
School Board to provide representation to school employee sued for striking a student in violation of Board policies in lawsuit that followed
School Board to provide representation to school employee sued for striking a student in violation of Board policies in lawsuit that followed
Matter of Sagal-Cotler v Board of Educ. of the City School Dist. of the City of NY, 2010 NY Slip Op 32657(U). September 22, 2010, Supreme Court, New York County, Judge: Carol E. Huff [Not selected for publication in the Official Reports]
Deborah Sagal-Cotler, a paraprofessional employed by the New York City School District, was supervising and escorting a class to the school cafeteria when one of the students repeatedly failed to follow her instructions. Sagal-Cotler then “yelled [the student’s] name and struck him in the face.”
The student’s commenced a civil action based on this incident [Watson v City of New York, Index No. 17534/09 (Sup Ct, Kings County)] in which Sagal-Cotler was a named respondent. Sagal-Cotler’s request for legal representation in the matter was denied in a letter from the City of New York Law Department.
In response, Sagal-Cotler filed an Article 78 petition seeking an order requiring the New York City Board of Education to provide her with legal representation, indemnification, reimbursement for attorneys' fees, and to hold her harmless for any financial losses resulting from the civil action, citing Education Law §3028 in support of her demand.
The Board, contending that Education Law §3028 was inapplicable and that §2560 of the Education Law controlled in this instance, opposed Sagal-Cotler’s motion. The Board argued only §2560 applied and provides that “[I]n a city of having a population of one million or more, the members of each community school board in such city, the teaching or supervising staff, officer or employee of such board . . . shall be entitled to legal representation and indemnification pursuant to the provisions of. . . section fifty-k of the general municipal law.”
The Board argued that although General Municipal Law §50-k(2) provides for such representation and indemnification it is applicable only with respect of acts or omissions that occurred “while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of the agency at the time the alleged act or omission occurred.” Here, said the Board, Sagal-Cotler “concedes that her action violated board rules against corporal punishment.”
Accordingly, claimed the Board, “if §50-k(2) were to apply, she would not be entitled to the relief she seeks.”
The court disagreed, holding that Education Law §3028 rather than General Municipal Law §50-k(2) controlled as “It is well settled that, in a conflict between a statute of general applicability and one of specific applicability, the special statute controls,” citing Board of Managers of Park Place Condominium v Town of Ramapo, 237 AD2d 537.
Here, said the court, Education Law §3028 is the more specific statute, because it provides specifically for situations involving disciplinary action in an education context, citing Tinmerman v Bd. of Educ. of the NYC School District, 50 AD3d 592. In Tinmerman the court held that as the “proceeding against petitioner clearly arose out of disciplinary actions that he took against pupils, respondents should reimburse petitioner for the attorneys’ fees and expenses he incurred in defending himself.”
However, this result would hinge on whether Sagal-Cotler was acting within the scope of her employment or duties during the incident. Judge Huff concluded that she was based on the ruling in Blood v Bd. o f Educ, of the City of New York, 121 AD2d 128. In Blood the Appellate Division found that “although in violation of regulations, a teacher acted within the scope of her duties where, angered by a student, she swung a book bag that injured another student.”
The court’s rationale: "Surely, it is not so unusual an occurrence that a teacher loses her temper with her class. Indeed, displays of anger in the classroom cannot be regarded as other than natural and sometimes necessary incidents of a teacher’s work. Nor can it be reasonably expected that a teacher’s anger will always be well gauged to the occasion and unaccompanied by impulsive behavior. Such behavior, although undesirable; is a generally foreseeable eventuality of teaching and, as such, must be deemed within the scope of a teacher’s employment."
Applying these rulings, Judge Huff concluded that Sagal-Cotler’s conduct “fell within the scope of her employment.”
Concluding that the Board's “misapplication of General Municipal Law §50-k(2)” was arbitrary and capricious,” that part of Sagal-Cotler’s petition seeking legal representation and reimbursement for attorneys’ fees in the Watson case was granted.
However, said the court, Sagal-Cotler’s claims for indemnification and to be held harmless are premature and were denied without prejudice pending the outcome of the Watson case.
* Education Law §3028 address “Liability of school district for cost and attorney’s fees of action against, or prosecutions of, teachers, members of supervisory and administrative staff or employees, and school volunteers.” It, in relevant part, provides “Each board of education, trustee or trustees in the state shall provide an attorney or attorneys for, and pay such attorney’s fees and expenses necessarily incurred in the defense of a teacher, member of a supervisory or administrative staff or employee, or authorized participant in a school volunteer program in any civil or criminal action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment or authorized volunteer duties.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32657.pdf
NYPPL
Matter of Sagal-Cotler v Board of Educ. of the City School Dist. of the City of NY, 2010 NY Slip Op 32657(U). September 22, 2010, Supreme Court, New York County, Judge: Carol E. Huff [Not selected for publication in the Official Reports]
Deborah Sagal-Cotler, a paraprofessional employed by the New York City School District, was supervising and escorting a class to the school cafeteria when one of the students repeatedly failed to follow her instructions. Sagal-Cotler then “yelled [the student’s] name and struck him in the face.”
The student’s commenced a civil action based on this incident [Watson v City of New York, Index No. 17534/09 (Sup Ct, Kings County)] in which Sagal-Cotler was a named respondent. Sagal-Cotler’s request for legal representation in the matter was denied in a letter from the City of New York Law Department.
In response, Sagal-Cotler filed an Article 78 petition seeking an order requiring the New York City Board of Education to provide her with legal representation, indemnification, reimbursement for attorneys' fees, and to hold her harmless for any financial losses resulting from the civil action, citing Education Law §3028 in support of her demand.
The Board, contending that Education Law §3028 was inapplicable and that §2560 of the Education Law controlled in this instance, opposed Sagal-Cotler’s motion. The Board argued only §2560 applied and provides that “[I]n a city of having a population of one million or more, the members of each community school board in such city, the teaching or supervising staff, officer or employee of such board . . . shall be entitled to legal representation and indemnification pursuant to the provisions of. . . section fifty-k of the general municipal law.”
The Board argued that although General Municipal Law §50-k(2) provides for such representation and indemnification it is applicable only with respect of acts or omissions that occurred “while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of the agency at the time the alleged act or omission occurred.” Here, said the Board, Sagal-Cotler “concedes that her action violated board rules against corporal punishment.”
Accordingly, claimed the Board, “if §50-k(2) were to apply, she would not be entitled to the relief she seeks.”
The court disagreed, holding that Education Law §3028 rather than General Municipal Law §50-k(2) controlled as “It is well settled that, in a conflict between a statute of general applicability and one of specific applicability, the special statute controls,” citing Board of Managers of Park Place Condominium v Town of Ramapo, 237 AD2d 537.
Here, said the court, Education Law §3028 is the more specific statute, because it provides specifically for situations involving disciplinary action in an education context, citing Tinmerman v Bd. of Educ. of the NYC School District, 50 AD3d 592. In Tinmerman the court held that as the “proceeding against petitioner clearly arose out of disciplinary actions that he took against pupils, respondents should reimburse petitioner for the attorneys’ fees and expenses he incurred in defending himself.”
However, this result would hinge on whether Sagal-Cotler was acting within the scope of her employment or duties during the incident. Judge Huff concluded that she was based on the ruling in Blood v Bd. o f Educ, of the City of New York, 121 AD2d 128. In Blood the Appellate Division found that “although in violation of regulations, a teacher acted within the scope of her duties where, angered by a student, she swung a book bag that injured another student.”
The court’s rationale: "Surely, it is not so unusual an occurrence that a teacher loses her temper with her class. Indeed, displays of anger in the classroom cannot be regarded as other than natural and sometimes necessary incidents of a teacher’s work. Nor can it be reasonably expected that a teacher’s anger will always be well gauged to the occasion and unaccompanied by impulsive behavior. Such behavior, although undesirable; is a generally foreseeable eventuality of teaching and, as such, must be deemed within the scope of a teacher’s employment."
Applying these rulings, Judge Huff concluded that Sagal-Cotler’s conduct “fell within the scope of her employment.”
Concluding that the Board's “misapplication of General Municipal Law §50-k(2)” was arbitrary and capricious,” that part of Sagal-Cotler’s petition seeking legal representation and reimbursement for attorneys’ fees in the Watson case was granted.
However, said the court, Sagal-Cotler’s claims for indemnification and to be held harmless are premature and were denied without prejudice pending the outcome of the Watson case.
* Education Law §3028 address “Liability of school district for cost and attorney’s fees of action against, or prosecutions of, teachers, members of supervisory and administrative staff or employees, and school volunteers.” It, in relevant part, provides “Each board of education, trustee or trustees in the state shall provide an attorney or attorneys for, and pay such attorney’s fees and expenses necessarily incurred in the defense of a teacher, member of a supervisory or administrative staff or employee, or authorized participant in a school volunteer program in any civil or criminal action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment or authorized volunteer duties.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32657.pdf
NYPPL
Denial of tenure based on failure to satisfy an advanced degree requirement in timely fashion ruled arbitrary
Denial of tenure based on failure to satisfy an advanced degree requirement in timely fashion ruled arbitrary
Aievoli v SUNY, 264 AD2d 476
The State University of New York [SUNY] denied Patrick J. Aievoli tenure because he had failed to attain his master’s degree “in a timely manner.” Aievoli sued, claiming that the tenure decision lack any rational basis.
The Appellate Division, Second Department, agreed with Aievoli and ordered SUNY to reopen its tenure process. The court said “there was no evidentiary support to substantiate [SUNY’s] claim that the denial of tenure was based upon a lack of commitment on the part of Aievoli” and that “the denial of tenure on this basis also was arbitrary and capricious.”
The Appellate Division affirmed a ruling by State Supreme Court Judge Alan Winick [Nassau County], who cited Harrison v Goldstein, 204 AD2d 451 in support of his decision.
The Appellate Division’s decision in Harrison relies on the so-called Pell standard, which holds that a court is justified in overturning an administrative decision if it finds that the decision is “shocking to one’s sense of fairness.” [Pell v Board of Education, 34 NY2d 222] Pell is more commonly cited in connection with challenges to disciplinary terminations.
In contrast to Aievoli’s case, it is well settled that where the law requires an individual to have a valid license or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law. Accordingly, the courts have had little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so.
Although such a person may continue to be “qualified” to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. In such situations the courts have upheld the employer summarily suspending the employee without pay.
Courts have deemed suspension without pay to be proper where the teacher lacks the necessary license or certification authorized [Meliti v Nyquist, 41 NY2d 183]. The legal theory in such cases is that it would be unlawful to continue a tenured but uncertified, and therefore unqualified, teacher on the payroll. [Suspension without pay is not available in disciplinary cases under Section 3020-a of the Education Law.]
Courts have also ruled that the fact that the teacher is granted a license to teach “retroactive” to the date of the expiration of his or her earlier certificate does not cure his or her “unqualified” status. The defect -- the inability to lawfully perform teaching duties -- is not remedied by the retroactive issuance of a license and the teacher’s subsequent recertification does not make his or her earlier suspension without pay unlawful. This is significant as it implies that the issuing of a “retroactive license” does not support any claim for back salary and benefits for the period during which the teacher was off the payroll.
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Aievoli v SUNY, 264 AD2d 476
The State University of New York [SUNY] denied Patrick J. Aievoli tenure because he had failed to attain his master’s degree “in a timely manner.” Aievoli sued, claiming that the tenure decision lack any rational basis.
The Appellate Division, Second Department, agreed with Aievoli and ordered SUNY to reopen its tenure process. The court said “there was no evidentiary support to substantiate [SUNY’s] claim that the denial of tenure was based upon a lack of commitment on the part of Aievoli” and that “the denial of tenure on this basis also was arbitrary and capricious.”
The Appellate Division affirmed a ruling by State Supreme Court Judge Alan Winick [Nassau County], who cited Harrison v Goldstein, 204 AD2d 451 in support of his decision.
The Appellate Division’s decision in Harrison relies on the so-called Pell standard, which holds that a court is justified in overturning an administrative decision if it finds that the decision is “shocking to one’s sense of fairness.” [Pell v Board of Education, 34 NY2d 222] Pell is more commonly cited in connection with challenges to disciplinary terminations.
In contrast to Aievoli’s case, it is well settled that where the law requires an individual to have a valid license or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law. Accordingly, the courts have had little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so.
Although such a person may continue to be “qualified” to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. In such situations the courts have upheld the employer summarily suspending the employee without pay.
Courts have deemed suspension without pay to be proper where the teacher lacks the necessary license or certification authorized [Meliti v Nyquist, 41 NY2d 183]. The legal theory in such cases is that it would be unlawful to continue a tenured but uncertified, and therefore unqualified, teacher on the payroll. [Suspension without pay is not available in disciplinary cases under Section 3020-a of the Education Law.]
Courts have also ruled that the fact that the teacher is granted a license to teach “retroactive” to the date of the expiration of his or her earlier certificate does not cure his or her “unqualified” status. The defect -- the inability to lawfully perform teaching duties -- is not remedied by the retroactive issuance of a license and the teacher’s subsequent recertification does not make his or her earlier suspension without pay unlawful. This is significant as it implies that the issuing of a “retroactive license” does not support any claim for back salary and benefits for the period during which the teacher was off the payroll.
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Excessive absenteeism basis for termination
Excessive absenteeism basis for termination
Cicero v Triborough Bridge and Tunnel Auth., 264 AD2d 334
The Triborough Bridge and Tunnel Authority [TBTA] terminated Rocco Cicero, a toll collector, after finding him guilty of charges alleging toll shortages, four unauthorized absences and excessive absenteeism. The finding of “excessive absenteeism” was based on Cicero being absent 80% of the time during a 22-month period. Most of this absence was because of an on-the-job injury suffered by Cicero and most of them were authorized by TBTA after periodic medical evaluations by its physicians.
After a hearing, the Administrative Law Judge (ALJ) sustained the toll shortage charge and one of the unauthorized absence charges, but dismissed the excessive absenteeism charge. The ALJ decided that although Cicero’s absences could be considered “excessive per se,” “it would be unfair to discipline employees for taking lengthy, injury-related leave” that was approved by the Authority without first giving the employee additional notice or warning as to what amount of absences would be deemed excessive and subject him or her to discipline. The ALJ recommended a 5-day suspension for the other infractions.
TBTA accepted the ALJ’s findings concerning the charges related to the toll shortage and unauthorized absences but, in addition, sustained the charge of excessive absenteeism. TBTA’s rationale: its rules explicitly authorized dismissal as a penalty for excessive absenteeism, and Cicero’s 80% absentee rate was plainly excessive.
TBTA’s appointing authority commented that Cicero’s absenteeism continued even after the charges were filed against him and that his excessive absences had resulted in serious morale and financial problems to the agency.
Cicero appealed and won an order by State Supreme Court Justice Alice Schlesinger annulling his termination and directing TBTA to reinstate him on the grounds that TBTA’s determination was arbitrary and capricious. Judge Schlesinger concluded that Cicero had been deprived of his due process rights, because he was not given notice that his approved absences could ultimately be considered “excessive”, and therefore misconduct. The Appellate Division reversed Judge Schlesinger’s ruling.
The Appellate Division decided that TBTA’s decision to terminate Cicero’s employment for excessive absenteeism “had a rational basis and should not be disturbed.” The courts said that the ALJ acknowledged that an absentee rate in excess of 50% “may be deemed excessive per se” and that Cicero’s absentee rate was well beyond that threshold. While the ALJ and Judge Schlesinger decided that Cicero had not been given “adequate notice,” the Appellate Division said that it disagreed and reversed.
The decision comments that TBTA’s rules clearly state that “excessive absence... will be cause for dismissal.” In addition, the governing collective bargaining agreement guarantees employees only 12 days sick leave per year, and TBTA issued a new policy in 1992 providing that a memorandum of unsatisfactory attendance would be issued to an employee after a 5th sick day was taken. This, said the court, meant that Cicero should have been on notice from numerous sources that excessive absences would not be tolerated.
The Appellate Division also rejected Cicero’s argument that his absences were approved and medically justified and therefore excused for the purposes of maintaining any disciplinary action against him.
.
Cicero v Triborough Bridge and Tunnel Auth., 264 AD2d 334
The Triborough Bridge and Tunnel Authority [TBTA] terminated Rocco Cicero, a toll collector, after finding him guilty of charges alleging toll shortages, four unauthorized absences and excessive absenteeism. The finding of “excessive absenteeism” was based on Cicero being absent 80% of the time during a 22-month period. Most of this absence was because of an on-the-job injury suffered by Cicero and most of them were authorized by TBTA after periodic medical evaluations by its physicians.
After a hearing, the Administrative Law Judge (ALJ) sustained the toll shortage charge and one of the unauthorized absence charges, but dismissed the excessive absenteeism charge. The ALJ decided that although Cicero’s absences could be considered “excessive per se,” “it would be unfair to discipline employees for taking lengthy, injury-related leave” that was approved by the Authority without first giving the employee additional notice or warning as to what amount of absences would be deemed excessive and subject him or her to discipline. The ALJ recommended a 5-day suspension for the other infractions.
TBTA accepted the ALJ’s findings concerning the charges related to the toll shortage and unauthorized absences but, in addition, sustained the charge of excessive absenteeism. TBTA’s rationale: its rules explicitly authorized dismissal as a penalty for excessive absenteeism, and Cicero’s 80% absentee rate was plainly excessive.
TBTA’s appointing authority commented that Cicero’s absenteeism continued even after the charges were filed against him and that his excessive absences had resulted in serious morale and financial problems to the agency.
Cicero appealed and won an order by State Supreme Court Justice Alice Schlesinger annulling his termination and directing TBTA to reinstate him on the grounds that TBTA’s determination was arbitrary and capricious. Judge Schlesinger concluded that Cicero had been deprived of his due process rights, because he was not given notice that his approved absences could ultimately be considered “excessive”, and therefore misconduct. The Appellate Division reversed Judge Schlesinger’s ruling.
The Appellate Division decided that TBTA’s decision to terminate Cicero’s employment for excessive absenteeism “had a rational basis and should not be disturbed.” The courts said that the ALJ acknowledged that an absentee rate in excess of 50% “may be deemed excessive per se” and that Cicero’s absentee rate was well beyond that threshold. While the ALJ and Judge Schlesinger decided that Cicero had not been given “adequate notice,” the Appellate Division said that it disagreed and reversed.
The decision comments that TBTA’s rules clearly state that “excessive absence... will be cause for dismissal.” In addition, the governing collective bargaining agreement guarantees employees only 12 days sick leave per year, and TBTA issued a new policy in 1992 providing that a memorandum of unsatisfactory attendance would be issued to an employee after a 5th sick day was taken. This, said the court, meant that Cicero should have been on notice from numerous sources that excessive absences would not be tolerated.
The Appellate Division also rejected Cicero’s argument that his absences were approved and medically justified and therefore excused for the purposes of maintaining any disciplinary action against him.
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Filing a timely appeal challenging administrative decisions critical
Filing a timely appeal challenging administrative decisions critical
Decker v BOCES Monroe 2-Orleans, Decisions of the Commissioner of Education #14173
It is not unusual for a disappointed job seeker to press for reconsideration of his or her application for appointment. The Decker case demonstrates that once a “final determination” concerning the appointment is made, seeking reconsideration does not toll the statute of limitations for filing a timely appeal of the decision.
Marvin R. Decker applied for a teaching position with Monroe2-Orleans BOCES. In February 1998, he learned that another applicant had been selected and was to be appointed effective March 31, 1998. Decker then “engaged in lengthy correspondence” with the BOCES in an effort to secure his appointment to the position.
In June 1998, the district superintendent candidly advised Decker that the board was not going to change its mind and suggested that he “seek a determination” from the Commissioner of Education or the courts. Notwithstanding this suggestion, Decker continued to correspond with the BOCES through October 1998 and did not file his Section 310 appeal with the Commissioner until December 16, 1998.
The Commissioner dismissed Decker’s appeal as untimely, rejecting Decker’s request that his delay in filing the appeal be excused “because he was trying to resolve this matter with [the BOCES].” The Commissioner pointed out that there were “numerous decisions ... that an attempt to gain reconsideration of a final determination does not stop the running of the [statute of] limitations period.”
In addition, Decker’s appeal contained a fatal defect, which would have required the Commissioner to dismiss his appeal even if it were timely filed: Decker neglected to name, and serve, a necessary party to his appeal - the successful candidate.* The Commissioner noted that Decker sought an order directing his appointment effective March 31, 1998, which relief “clearly threatens the rights of the incumbent....”
Some of the technical elements to keep in mind in filing Section 310 appeals to the Commissioner of Education are:
1. Appeals must be filed within 30 days “from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown” [8 NYCRR 275.16].
2. If the agency agrees to “reconsider its original determination,” this decision would trigger a “new” statute of limitations period running from the date of the “new” final determination.
3. The appellant is required to file an affidavit proving service of a copy of the petition on the respondents [8 NYCRR 257.9; 276.8]
* Sometimes it is possible to correct this type of problem by filing a new appeal naming, and serving, all necessary parties omitted in the original appeal. Such a filing, however, must still meet the original time limits for perfecting the appeal.
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Decker v BOCES Monroe 2-Orleans, Decisions of the Commissioner of Education #14173
It is not unusual for a disappointed job seeker to press for reconsideration of his or her application for appointment. The Decker case demonstrates that once a “final determination” concerning the appointment is made, seeking reconsideration does not toll the statute of limitations for filing a timely appeal of the decision.
Marvin R. Decker applied for a teaching position with Monroe2-Orleans BOCES. In February 1998, he learned that another applicant had been selected and was to be appointed effective March 31, 1998. Decker then “engaged in lengthy correspondence” with the BOCES in an effort to secure his appointment to the position.
In June 1998, the district superintendent candidly advised Decker that the board was not going to change its mind and suggested that he “seek a determination” from the Commissioner of Education or the courts. Notwithstanding this suggestion, Decker continued to correspond with the BOCES through October 1998 and did not file his Section 310 appeal with the Commissioner until December 16, 1998.
The Commissioner dismissed Decker’s appeal as untimely, rejecting Decker’s request that his delay in filing the appeal be excused “because he was trying to resolve this matter with [the BOCES].” The Commissioner pointed out that there were “numerous decisions ... that an attempt to gain reconsideration of a final determination does not stop the running of the [statute of] limitations period.”
In addition, Decker’s appeal contained a fatal defect, which would have required the Commissioner to dismiss his appeal even if it were timely filed: Decker neglected to name, and serve, a necessary party to his appeal - the successful candidate.* The Commissioner noted that Decker sought an order directing his appointment effective March 31, 1998, which relief “clearly threatens the rights of the incumbent....”
Some of the technical elements to keep in mind in filing Section 310 appeals to the Commissioner of Education are:
1. Appeals must be filed within 30 days “from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown” [8 NYCRR 275.16].
2. If the agency agrees to “reconsider its original determination,” this decision would trigger a “new” statute of limitations period running from the date of the “new” final determination.
3. The appellant is required to file an affidavit proving service of a copy of the petition on the respondents [8 NYCRR 257.9; 276.8]
* Sometimes it is possible to correct this type of problem by filing a new appeal naming, and serving, all necessary parties omitted in the original appeal. Such a filing, however, must still meet the original time limits for perfecting the appeal.
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Using internal investigation reports in civil lawsuits
Using internal investigation reports in civil lawsuits
Ramirez v MBSTOA, 258 A.D.2d 326
It is not uncommon for an employer to undertake an “internal investigation” of an incident involving alleged negligence or misconduct on the part of an employee in the performance of his or her duties. For example, an internal affairs unit of a police department may conduct an “internal investigation” following allegations of negligence or misconduct filed against a police officer.
If the internal investigator finds that the employee “was at fault” and states this conclusion in his or her final report, may a plaintiff use this as an “admission” by the employer in a lawsuit for negligence?
Not necessarily. In Ramirez wanted to use an internal investigation report prepared by MBSTOA investigators that concluded that the MBSTOA’s driver who was involved in a particular accident was “at fault” in his lawsuit against MBSTOA to prove “negligence” on its part. The Appellate Division upheld a lower court’s ruling that Ramirez could not use the investigation report as evidence in the lawsuit that Ramirez brought against MBSTOA for negligence.
The court’s rationale: the admission of the report into evidence “would be unfairly prejudicial” to MBSTOA and “misleading to the jury.” The trial court had barred Ramirez’s introduction of the MBSTOA’s initial internal investigatory report because it found that the investigator’s determination was based on the Authority’s “internal rules and policies” and that those rules and policies “exceeded the applicable common-law negligence standard of care.”
In other words, MBSTOA demanded a higher standard of performance on the part of its drivers than was required under common law. The Appellate Division concurred with the Supreme Court judge’s ruling, observing that the initial report’s conclusion that the MBSTOA driver “was at fault” was changed on review to a finding of “questionable”.
The lesson here is that if an agency wishes to prevent adverse information contained in an internal investigation report from being used in a trial, it must show that the report was prepared in consideration of a standard of care that is higher than that imposed under common [or case] law.
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Ramirez v MBSTOA, 258 A.D.2d 326
It is not uncommon for an employer to undertake an “internal investigation” of an incident involving alleged negligence or misconduct on the part of an employee in the performance of his or her duties. For example, an internal affairs unit of a police department may conduct an “internal investigation” following allegations of negligence or misconduct filed against a police officer.
If the internal investigator finds that the employee “was at fault” and states this conclusion in his or her final report, may a plaintiff use this as an “admission” by the employer in a lawsuit for negligence?
Not necessarily. In Ramirez wanted to use an internal investigation report prepared by MBSTOA investigators that concluded that the MBSTOA’s driver who was involved in a particular accident was “at fault” in his lawsuit against MBSTOA to prove “negligence” on its part. The Appellate Division upheld a lower court’s ruling that Ramirez could not use the investigation report as evidence in the lawsuit that Ramirez brought against MBSTOA for negligence.
The court’s rationale: the admission of the report into evidence “would be unfairly prejudicial” to MBSTOA and “misleading to the jury.” The trial court had barred Ramirez’s introduction of the MBSTOA’s initial internal investigatory report because it found that the investigator’s determination was based on the Authority’s “internal rules and policies” and that those rules and policies “exceeded the applicable common-law negligence standard of care.”
In other words, MBSTOA demanded a higher standard of performance on the part of its drivers than was required under common law. The Appellate Division concurred with the Supreme Court judge’s ruling, observing that the initial report’s conclusion that the MBSTOA driver “was at fault” was changed on review to a finding of “questionable”.
The lesson here is that if an agency wishes to prevent adverse information contained in an internal investigation report from being used in a trial, it must show that the report was prepared in consideration of a standard of care that is higher than that imposed under common [or case] law.
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Filing an employer application for involuntary ordinary disability retirement on behalf of the employee
Filing an employer application for involuntary ordinary disability retirement on behalf of the employee
Oshinsky v NYC Housing Auth., USDC-SDNY
Various state retirement laws authorize an employer to file an application for retirement on behalf of an individual who is unable to perform his or her duties if the individual declines to do so. Can the filing of an employer application, resulting in the involuntary retirement of an employee, constitute an act of unlawful discrimination?
This was one of the issues considered by a federal district court judge in Oshinsky v New York City Housing Authority. The decision suggests that such a filing by an employer application could constitute unlawful discrimination if it is determined that it was in the nature of retaliation.
Abby Oshinsky, a former New York City Housing Authority [NYCHA] police officer, asked a federal district court judge to award her back pay, front pay, and $2 million in damages. She said her Title VII of the 1964 Civil Rights Act [42 USC 2000e] rights were violated as she was subjected to “retaliatory discharge,” unlawful discrimination, and sexual harassment. She also claimed violations of the state Human Rights Law.
Oshinsky had filed nine different complaints over a period of several years, three of which were brought under Title VII. One of her Title VII claims alleged that she had been the victim of a “retaliatory discharge” based on her having been retirement on ordinary disability as a result of NYPD (which had merged with the housing authority police) filing an employer application for retirement on her behalf.
Among the significant events relevant to Oshinsky’s claims:
1. In January 1994 Oshinsky, then an employee of NYCHA, slipped and fell while at work, striking her head. Initially assigned to “limited duty,” in November 1994, NYCHA placed Oshinsky on sick leave based on her “complaining of headaches, inability to concentrate, and feelings of anxiety and depression.”
2. NYCHA police were merged into NYPD while Oshinsky was on sick leave.
3. On August 9, 1995, Oshinsky, now a NYPD employee, applied for accident disability retirement and benefits, complaining of “post-concussion syndrome.”
4. As required by New York City regulations, NYPD then submitted an employer application for ordinary disability on Oshinsky’s behalf.
Oshinsky’s application for accidental disability retirement was rejected after a finding that her disability was not the “natural and proximate result of accidental injury received in the performance of police duty.” However, the application for ordinary disability retirement filed on her behalf by NYPD was approved and in November 1996, she was retired on ordinary disability.
Oshinsky has then filed a complaint with the EEOC contending that her retirement for “ordinary disability” was, in effect, a wrongful discharge. The EEOC issued a Notice of Right to Sue letter on May 28, 1998 but her claims against the NYPD for “retaliatory discharge” were dismissed by Federal District Court Judge Allen G. Schwartz. The court said that in order to establish a prima facie case of retaliation under Title VII and state law, a plaintiff must show three elements: (1) participation in a protected activity known to the defendant; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action.
While it was clear that Oshinsky applied for accident disability retirement and benefits based on her alleged “post-concussion syndrome,” in her Title VII complaint she contended that she had been “tricked” into filing the application. Judge Schwartz said that he assumed that for the purpose of deciding the City’s motion for summary judgment that “when the NYPD retired [Oshinsky] based upon a diagnosis of depression, and awarded her a less desirable [ordinary] retirement package, it subjected her to an adverse employment action.” Notwithstanding this, the court said that:
[w]e find, however, that [Oshinsky] has failed to demonstrate a causal connection between the sexual harassment complaints she filed while she was with NYCHA and what she refers to as her “forced” retirement by the NYPD. Plaintiff filed her complaints against NYCHA in February 1990 and January 1992. At the time she came to the NYPD, [Oshinsky] had been out on sick leave since November 1994. She was retired by the NYPD in November 1996, almost five years after the second complaint, without ever actually having performed any work for the NYPD. There is no basis to conclude that [Oshinsky’s] complaints, filed in 1990 and 1992 against one agency, led to her “forced” retirement in 1996 by another agency.
While the court in this case decided that in this instance there was no basis to conclude that NYPD’s filing an application on behalf of Oshinsky for ordinary disability retirement constituted a “retaliatory discharge,” the implication is that such a claim could serve as a basis for a Title VII action and, if proved, redress provided.
Judge Schwartz summarily dismissed the eight other claims filed by Oshinsky alleging violations of Title VII and the State Human Rights Law and various torts. With respect to Oshinsky naming her superior, Richie Aalbue, as a defendant, Judge Schwartz said that “no cause of action can lie against an individual under Title VII.” While the Title VII claims against Aalbue were dismissed, the decision notes that the Second Circuit has held that an individual who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the New York Human Rights Law, citing Matter of Tomka v Seiler Corporation, 66 F.3d 1295.
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Oshinsky v NYC Housing Auth., USDC-SDNY
Various state retirement laws authorize an employer to file an application for retirement on behalf of an individual who is unable to perform his or her duties if the individual declines to do so. Can the filing of an employer application, resulting in the involuntary retirement of an employee, constitute an act of unlawful discrimination?
This was one of the issues considered by a federal district court judge in Oshinsky v New York City Housing Authority. The decision suggests that such a filing by an employer application could constitute unlawful discrimination if it is determined that it was in the nature of retaliation.
Abby Oshinsky, a former New York City Housing Authority [NYCHA] police officer, asked a federal district court judge to award her back pay, front pay, and $2 million in damages. She said her Title VII of the 1964 Civil Rights Act [42 USC 2000e] rights were violated as she was subjected to “retaliatory discharge,” unlawful discrimination, and sexual harassment. She also claimed violations of the state Human Rights Law.
Oshinsky had filed nine different complaints over a period of several years, three of which were brought under Title VII. One of her Title VII claims alleged that she had been the victim of a “retaliatory discharge” based on her having been retirement on ordinary disability as a result of NYPD (which had merged with the housing authority police) filing an employer application for retirement on her behalf.
Among the significant events relevant to Oshinsky’s claims:
1. In January 1994 Oshinsky, then an employee of NYCHA, slipped and fell while at work, striking her head. Initially assigned to “limited duty,” in November 1994, NYCHA placed Oshinsky on sick leave based on her “complaining of headaches, inability to concentrate, and feelings of anxiety and depression.”
2. NYCHA police were merged into NYPD while Oshinsky was on sick leave.
3. On August 9, 1995, Oshinsky, now a NYPD employee, applied for accident disability retirement and benefits, complaining of “post-concussion syndrome.”
4. As required by New York City regulations, NYPD then submitted an employer application for ordinary disability on Oshinsky’s behalf.
Oshinsky’s application for accidental disability retirement was rejected after a finding that her disability was not the “natural and proximate result of accidental injury received in the performance of police duty.” However, the application for ordinary disability retirement filed on her behalf by NYPD was approved and in November 1996, she was retired on ordinary disability.
Oshinsky has then filed a complaint with the EEOC contending that her retirement for “ordinary disability” was, in effect, a wrongful discharge. The EEOC issued a Notice of Right to Sue letter on May 28, 1998 but her claims against the NYPD for “retaliatory discharge” were dismissed by Federal District Court Judge Allen G. Schwartz. The court said that in order to establish a prima facie case of retaliation under Title VII and state law, a plaintiff must show three elements: (1) participation in a protected activity known to the defendant; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action.
While it was clear that Oshinsky applied for accident disability retirement and benefits based on her alleged “post-concussion syndrome,” in her Title VII complaint she contended that she had been “tricked” into filing the application. Judge Schwartz said that he assumed that for the purpose of deciding the City’s motion for summary judgment that “when the NYPD retired [Oshinsky] based upon a diagnosis of depression, and awarded her a less desirable [ordinary] retirement package, it subjected her to an adverse employment action.” Notwithstanding this, the court said that:
[w]e find, however, that [Oshinsky] has failed to demonstrate a causal connection between the sexual harassment complaints she filed while she was with NYCHA and what she refers to as her “forced” retirement by the NYPD. Plaintiff filed her complaints against NYCHA in February 1990 and January 1992. At the time she came to the NYPD, [Oshinsky] had been out on sick leave since November 1994. She was retired by the NYPD in November 1996, almost five years after the second complaint, without ever actually having performed any work for the NYPD. There is no basis to conclude that [Oshinsky’s] complaints, filed in 1990 and 1992 against one agency, led to her “forced” retirement in 1996 by another agency.
While the court in this case decided that in this instance there was no basis to conclude that NYPD’s filing an application on behalf of Oshinsky for ordinary disability retirement constituted a “retaliatory discharge,” the implication is that such a claim could serve as a basis for a Title VII action and, if proved, redress provided.
Judge Schwartz summarily dismissed the eight other claims filed by Oshinsky alleging violations of Title VII and the State Human Rights Law and various torts. With respect to Oshinsky naming her superior, Richie Aalbue, as a defendant, Judge Schwartz said that “no cause of action can lie against an individual under Title VII.” While the Title VII claims against Aalbue were dismissed, the decision notes that the Second Circuit has held that an individual who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the New York Human Rights Law, citing Matter of Tomka v Seiler Corporation, 66 F.3d 1295.
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Oct 4, 2010
Conduct that was the subject of counseling memoranda may be the basis for disciplinary charges subsequently served on the employee
Conduct that was the subject of counseling memoranda may be the basis for disciplinary charges subsequently served on the employeeMatter of Board of Educ. of the Dundee Cent. School Dist. v Coleman, 2010 NY Slip Op 51684(U), Decided on October 1, 2010, Supreme Court, Yates County, Judge W. Patrick Falvey [Not selected for publication in the Official Reports]
The Board of Education of the Dundee Central School District filed disciplinary charges against Douglas Coleman, a tenured social studies teacher, pursuant to Education Law §3020-a.
The Hearing Officer found the Coleman guilty of some of the charges and dismissed others. He imposed a penalty of suspension from all teaching duties without pay, but directed Dundee to continue paying its contributions for Coleman’s medical insurance coverage during the period of Coleman's suspension without pay. In accordance with the Hearing Officer's decision, Dundee set Coleman’s suspension without pay for the period from June 2, 2010 through February 1, 2011.
Dundee then filed a petition pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] asking the court to vacate a portion of the Hearing Officer's decision. Dundee argued that the Hearing Officer “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.”
The two major points advanced by Dundee:
1. The Hearing Officer was incorrect in dismissing certain charges that Dundee filed against Coleman on the theory that the school district had earlier given Coleman “counseling memos concerning the underlying conduct that gave rise to them.”
2. The Hearing Officer's determination that the school district must continue to pay employer contributions for Coleman’s health insurance coverage during his 6-month suspension without pay was inconsistent with Education Law §3020-a(4)(a), which section, it argued, “necessarily involves a suspension of all payments by Dundee for Coleman's benefit.”
As to the dismissal of certain of the disciplinary charges filed against Coleman, Judge Falvey said that “There is no support for the premise that if a School District gives a counseling memo in the first instance, rather than immediately proceeding to bring formal charges, that it has somehow waived its right to do so at a future date.”
Judge Falvey explained that it was clear from case law that a school district is not precluded from including incidents giving rise to counseling memoranda as part of formal charges in a Education Law §3020-a proceeding, citing Hoyt v. Board of Education of the Webuttuck Central School District, 52 NY2d 625 and Cohn v. Board of Education of the City School District of the City of New York, 74 AD3d 57.*
In the words of the court: “The gist of the foregoing cases stands for the proposition that teachers are not entitled to have Education Law §3020-a disciplinary protections just because a counseling memo issues. Rather, the courts note that the teachers are given an opportunity to file their written responses to the counseling memos and further action may never be taken against them. However, in the event formal disciplinary proceedings ensue the teachers are entitled to their full panoply of rights and protections under Education Law §3020-a. Clearly, based upon the foregoing case law, it is anticipated that school districts may choose to seek disciplinary charges against teachers based upon the totality of the circumstances the school districts are reviewing.”
Accordingly, Judge Falvey vacated the Hearing Officer's dismissal of Charge 1, Specifications 1.1, 1.2 and 1.3, as well as Charge 2, Specifications 2.1, 2.2 and 2.3.**
With respect to the Hearing Officer directing Dundee to continue making its employer contributions for Coleman’s health insurance premiums during the period of his suspension without pay, the court agreed with the school district that "a suspension without pay" pursuant to Education Law §3020-a(4)(a) necessarily involves a suspension of all payments by Dundee for Coleman's benefit.”
Judge Falvey then vacated the “Hearing Officer’s direction that Dundee pay for Coleman's health insurance benefits during his period of suspension,” explaining that “The statutory scheme clearly contemplates suspension of all financial benefits upon a suspension without pay.”
In addition, the court directed Coleman to reimburse Dundee for any such costs already advanced on Coleman's behalf by Dundee and Dundee was “immediately stayed from making any further contributions during the suspension period.”
Finally, Judge Falvey directed the Hearing Officer to reconsider Specifications 1.1 - 1.3 and 2.1 - 2.3, commenting that in the event the Hearing Officer "finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty."
In making its ruling, the Court said that Coleman's suspension was to continue in accordance with the Hearing Officer's existing decision, subject to any modification following the Hearing Officer’s reconsideration of the matter as directed by the court.
Harvey Randall Comments: As to the decision's addressing the payment of health insurance premiums during the period of a disciplinary suspension, such an individual remains an employee while so suspended without pay and may continue in the health insurance plan but if he or she remains in the plan, he or she is required to pay both the employer contribution and the employee contribution while he or she of "off the payroll." Technically, the individual is on "leave without pay" for a period equal in length to the period of suspension without pay imposed as the disciplinary penalty.
Although the ruling does not indicate the carrier of the health insurance plan provided by the school district, were it the State's health insurance plan [NYSHIP] 4 NYCRR 73.3(b)(1) would obtain. 4 NYCRR 73.3(b)(1), in pertinent part, provides: An employee on leave without pay … shall be required to pay the entire charge (both employee's and employer's contributions) on account of such coverage for each full pay period of absence .... [emphasis supplied].
Assuming, without deciding, that Dundee is not a participating employer in NYSHIP, the court's directive that Coleman reimburse Dundee for any such costs it already advanced on Coleman's behalf as premiums in a non-NYSHIP plan and staying Dundee from making any further employer contributions for health insurance during Coleman’s period of suspension without pay is consistent with the policy set out in 4 NYCRR 73.3(b)(1) with respect to participating employers.
With regard to State's dental insurance plan,*** 4 NYCRR 74.3(a) provides as follows:
Contributions. (a) Rate of contribution. The rate of contribution of the State on account of the coverage of its employees and their dependents shall be 100 percent of the charge on account of individual coverage and 100 percent of the charge on account of dependent coverage. Notwithstanding the foregoing provisions an employee on leave without pay, whose coverage is continued pursuant to this Part shall be required to pay the entire charge on account of such coverage for each full month of absence [emphasis supplied].
* The undersigned notes that the court also cited "Employment History and Disciplinary Action by Harvey Randall, 2001 No. 2 Pub. Emp. L. Notes 27," in its ruling on this point.
** The matter was remanded to the Hearing Officer to reconsider Specifications 1.1 - 1.3 and 2.1 - 2.3 with the comment that “If the Hearing Officer finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty.”
*** The State’s dental plan is available to employees of the State as an employer and to the employees of a public authority, public benefit corporation, or quasi-public organization of the State submitting a certified copy of a resolution of its governing body electing such inclusion to the President of the State Civil Service Commission.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51684.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/
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NYPPL
The Board of Education of the Dundee Central School District filed disciplinary charges against Douglas Coleman, a tenured social studies teacher, pursuant to Education Law §3020-a.
The Hearing Officer found the Coleman guilty of some of the charges and dismissed others. He imposed a penalty of suspension from all teaching duties without pay, but directed Dundee to continue paying its contributions for Coleman’s medical insurance coverage during the period of Coleman's suspension without pay. In accordance with the Hearing Officer's decision, Dundee set Coleman’s suspension without pay for the period from June 2, 2010 through February 1, 2011.
Dundee then filed a petition pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] asking the court to vacate a portion of the Hearing Officer's decision. Dundee argued that the Hearing Officer “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.”
The two major points advanced by Dundee:
1. The Hearing Officer was incorrect in dismissing certain charges that Dundee filed against Coleman on the theory that the school district had earlier given Coleman “counseling memos concerning the underlying conduct that gave rise to them.”
2. The Hearing Officer's determination that the school district must continue to pay employer contributions for Coleman’s health insurance coverage during his 6-month suspension without pay was inconsistent with Education Law §3020-a(4)(a), which section, it argued, “necessarily involves a suspension of all payments by Dundee for Coleman's benefit.”
As to the dismissal of certain of the disciplinary charges filed against Coleman, Judge Falvey said that “There is no support for the premise that if a School District gives a counseling memo in the first instance, rather than immediately proceeding to bring formal charges, that it has somehow waived its right to do so at a future date.”
Judge Falvey explained that it was clear from case law that a school district is not precluded from including incidents giving rise to counseling memoranda as part of formal charges in a Education Law §3020-a proceeding, citing Hoyt v. Board of Education of the Webuttuck Central School District, 52 NY2d 625 and Cohn v. Board of Education of the City School District of the City of New York, 74 AD3d 57.*
In the words of the court: “The gist of the foregoing cases stands for the proposition that teachers are not entitled to have Education Law §3020-a disciplinary protections just because a counseling memo issues. Rather, the courts note that the teachers are given an opportunity to file their written responses to the counseling memos and further action may never be taken against them. However, in the event formal disciplinary proceedings ensue the teachers are entitled to their full panoply of rights and protections under Education Law §3020-a. Clearly, based upon the foregoing case law, it is anticipated that school districts may choose to seek disciplinary charges against teachers based upon the totality of the circumstances the school districts are reviewing.”
Accordingly, Judge Falvey vacated the Hearing Officer's dismissal of Charge 1, Specifications 1.1, 1.2 and 1.3, as well as Charge 2, Specifications 2.1, 2.2 and 2.3.**
With respect to the Hearing Officer directing Dundee to continue making its employer contributions for Coleman’s health insurance premiums during the period of his suspension without pay, the court agreed with the school district that "a suspension without pay" pursuant to Education Law §3020-a(4)(a) necessarily involves a suspension of all payments by Dundee for Coleman's benefit.”
Judge Falvey then vacated the “Hearing Officer’s direction that Dundee pay for Coleman's health insurance benefits during his period of suspension,” explaining that “The statutory scheme clearly contemplates suspension of all financial benefits upon a suspension without pay.”
In addition, the court directed Coleman to reimburse Dundee for any such costs already advanced on Coleman's behalf by Dundee and Dundee was “immediately stayed from making any further contributions during the suspension period.”
Finally, Judge Falvey directed the Hearing Officer to reconsider Specifications 1.1 - 1.3 and 2.1 - 2.3, commenting that in the event the Hearing Officer "finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty."
In making its ruling, the Court said that Coleman's suspension was to continue in accordance with the Hearing Officer's existing decision, subject to any modification following the Hearing Officer’s reconsideration of the matter as directed by the court.
Harvey Randall Comments: As to the decision's addressing the payment of health insurance premiums during the period of a disciplinary suspension, such an individual remains an employee while so suspended without pay and may continue in the health insurance plan but if he or she remains in the plan, he or she is required to pay both the employer contribution and the employee contribution while he or she of "off the payroll." Technically, the individual is on "leave without pay" for a period equal in length to the period of suspension without pay imposed as the disciplinary penalty.
Although the ruling does not indicate the carrier of the health insurance plan provided by the school district, were it the State's health insurance plan [NYSHIP] 4 NYCRR 73.3(b)(1) would obtain. 4 NYCRR 73.3(b)(1), in pertinent part, provides: An employee on leave without pay … shall be required to pay the entire charge (both employee's and employer's contributions) on account of such coverage for each full pay period of absence .... [emphasis supplied].
Assuming, without deciding, that Dundee is not a participating employer in NYSHIP, the court's directive that Coleman reimburse Dundee for any such costs it already advanced on Coleman's behalf as premiums in a non-NYSHIP plan and staying Dundee from making any further employer contributions for health insurance during Coleman’s period of suspension without pay is consistent with the policy set out in 4 NYCRR 73.3(b)(1) with respect to participating employers.
With regard to State's dental insurance plan,*** 4 NYCRR 74.3(a) provides as follows:
Contributions. (a) Rate of contribution. The rate of contribution of the State on account of the coverage of its employees and their dependents shall be 100 percent of the charge on account of individual coverage and 100 percent of the charge on account of dependent coverage. Notwithstanding the foregoing provisions an employee on leave without pay, whose coverage is continued pursuant to this Part shall be required to pay the entire charge on account of such coverage for each full month of absence [emphasis supplied].
* The undersigned notes that the court also cited "Employment History and Disciplinary Action by Harvey Randall, 2001 No. 2 Pub. Emp. L. Notes 27," in its ruling on this point.
** The matter was remanded to the Hearing Officer to reconsider Specifications 1.1 - 1.3 and 2.1 - 2.3 with the comment that “If the Hearing Officer finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty.”
*** The State’s dental plan is available to employees of the State as an employer and to the employees of a public authority, public benefit corporation, or quasi-public organization of the State submitting a certified copy of a resolution of its governing body electing such inclusion to the President of the State Civil Service Commission.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51684.htm
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
NYPPL
A disability that causes or contributes to an employee’s decision to retire constitutes an involuntary withdrawal from the labor market
A disability that causes or contributes to an employee’s decision to retire constitutes an involuntary withdrawal from the labor market Matter of Jimerson v New York City Police Dept., 2010 NY Slip Op 06729, Decided on September 30, 2010, Appellate Division, Third Department
Delores Jimerson was employed as a senior administrative aide by the New York City Police Department. In May 2002, claimant applied for workers' compensation benefits claiming injuries to her hands, neck and back due to repetitive movement associated with her employment. A work-related injury to the neck and back was ultimately established.
Jimerson continued to work for the Police Department but ultimately claimed that she was totally disabled from working.*
A Workers' Compensation Law Judge determined that Jimerson had voluntarily removed herself from the labor market and denied her additional workers' compensation benefits. The Workers’ Compensation Board subsequently affirmed the Administrative Law Judge’s determination that Jimerson had voluntarily removed herself from the labor market.
In response to Jimerson appeal, the Appellate Division commented that "Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board to resolve and, if supported by substantial evidence in the record, the Board's resolution of that issue will not be disturbed." However, the court continued, “It is well settled … that "a retirement is an involuntary withdrawal if the claimant's disability caused or contributed to the decision to retire."
Reviewing the record, the Appellate Division said that it did not find substantial evidence to support the Board's determination that Jimerson had voluntarily withdrew from the labor market. Although, said the court, the Board found that Jimerson "was able to perform her regular job duties without restriction on a full-time basis until removing herself from the labor market," there is a complete absence of evidence to support such finding. Indeed, the decision notes that “there is substantial evidence to the contrary.”
The Appellate Division then reversed the Board’s determination and remanded the matter to it for “further proceedings not inconsistent with this Court's decision.”
* Jimerson retired in November 2006.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06729.htm
NYPPL
Delores Jimerson was employed as a senior administrative aide by the New York City Police Department. In May 2002, claimant applied for workers' compensation benefits claiming injuries to her hands, neck and back due to repetitive movement associated with her employment. A work-related injury to the neck and back was ultimately established.
Jimerson continued to work for the Police Department but ultimately claimed that she was totally disabled from working.*
A Workers' Compensation Law Judge determined that Jimerson had voluntarily removed herself from the labor market and denied her additional workers' compensation benefits. The Workers’ Compensation Board subsequently affirmed the Administrative Law Judge’s determination that Jimerson had voluntarily removed herself from the labor market.
In response to Jimerson appeal, the Appellate Division commented that "Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board to resolve and, if supported by substantial evidence in the record, the Board's resolution of that issue will not be disturbed." However, the court continued, “It is well settled … that "a retirement is an involuntary withdrawal if the claimant's disability caused or contributed to the decision to retire."
Reviewing the record, the Appellate Division said that it did not find substantial evidence to support the Board's determination that Jimerson had voluntarily withdrew from the labor market. Although, said the court, the Board found that Jimerson "was able to perform her regular job duties without restriction on a full-time basis until removing herself from the labor market," there is a complete absence of evidence to support such finding. Indeed, the decision notes that “there is substantial evidence to the contrary.”
The Appellate Division then reversed the Board’s determination and remanded the matter to it for “further proceedings not inconsistent with this Court's decision.”
* Jimerson retired in November 2006.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06729.htm
NYPPL
Asserting rights not covered by the Taylor Law collective bargaining agreement
Asserting rights not covered by the Taylor Law collective bargaining agreement
CSEA v Nassau Co., App. Div., 2nd Dept., 264 AD2d 798, Motion for leave to appeal denied, 94 NY2d 759
Clearly, a public employee union may, under appropriate circumstances, file a lawsuit, or demand arbitration, for an alleged breach of a collective bargaining agreement. May an employee organization representing public employees sue on the basis of alleged violations of rights not included in a Taylor Law agreement?
In Aeneas McDonald Police Benevolent Association v City of Geneva, 92 NY2d 326, the Court of Appeals said a public sector labor union may assert rights not covered in its collective bargaining agreement if it can show that:
(a) one or more of its members has standing to sue;
(b) the interests sought to be protected are sufficiently germane to the union to satisfy the court that the union is an appropriate representative of those interests; and
(c) Individual members of the organization” are not required to assert the claim in for the tribunal to provide complete relief.
In this instance, CSEA sued, seeking reinstatement and back pay for members of its collective bargaining unit laid off as a result of Nassau County’s 1992 budget difficulties. Its theory: the layoff was breach of its collective bargaining agreement with the county.
The Appellate Division affirmed a lower court’s ruling that CSEA lacked standing to maintain the action. While couched in terms of a contract violation, the court said that there was no underlying contract provision involved.
As to CSEA’s standing under the Aeneas McDonald Police Benevolent Association doctrine, the court found that it failed to meet the third test set by the Court of Appeals since the participation of the individuals affected was required in this instance.
The case arose as the result of the county administration terminating or demoting some 2,000 employees in response to its 1992 “budget crisis.” One employee who was affected by this, Joseph E. Torre, successfully challenged the action taken against him as violative of the doctrine of legislative equivalency [Torre v County of Nassau, 86 NY2d 421].
Simply stated, the doctrine holds that “a position created by a legislative act must be abolished by a correlative legislative act.” In other words, a county administrator may not unilaterally abolish a position created by the legislature.
A number of county workers affected by the abolition of positions in 1992 have attempted to interpose legislative equivalency claims in an effort to attain reinstatement and back salary.
When CSEA alleged a breach of the controlling Taylor Law agreement in an effort to win reinstatement for individuals in the collective bargaining unit laid off in 1992, the court said that “it is clear that, in reality, the CSEA is attempting to assert a Torre legislative equivalency claim on behalf of all aggrieved employees.” Since it is “the nature and origin of the wrong, the substance and not the form, which controls,” the Appellate Division held that the lower court’s dismissal of CSEA’s petition was correct.
According to the ruling, “the claimed wrong and the rights sought to be enforced arise outside the four corners of the collective bargaining agreement.” Therefore, CSEA had to show that it satisfied the three-prong test set out in the Aeneas McDonald decision in order to maintain the action. The Appellate Division said that CSEA failed to meet the “third prong of the test.”
The Appellate Division ruled that the individual circumstances of each employee would have to be considered to determine whether or not the Torre rule was violated.
The court noted that it had earlier addressed the issue in Weitzenbergh v Nassau County Department of Recreation and Parks, 249 AD2d 538. It denied class action status in the Weitzenbergh case, noting that “there were numerous differences among members of the proposed class and no evidentiary support for the proposition that their positions were improperly abolished under the doctrine of legislative equivalency.”
.
CSEA v Nassau Co., App. Div., 2nd Dept., 264 AD2d 798, Motion for leave to appeal denied, 94 NY2d 759
Clearly, a public employee union may, under appropriate circumstances, file a lawsuit, or demand arbitration, for an alleged breach of a collective bargaining agreement. May an employee organization representing public employees sue on the basis of alleged violations of rights not included in a Taylor Law agreement?
In Aeneas McDonald Police Benevolent Association v City of Geneva, 92 NY2d 326, the Court of Appeals said a public sector labor union may assert rights not covered in its collective bargaining agreement if it can show that:
(a) one or more of its members has standing to sue;
(b) the interests sought to be protected are sufficiently germane to the union to satisfy the court that the union is an appropriate representative of those interests; and
(c) Individual members of the organization” are not required to assert the claim in for the tribunal to provide complete relief.
In this instance, CSEA sued, seeking reinstatement and back pay for members of its collective bargaining unit laid off as a result of Nassau County’s 1992 budget difficulties. Its theory: the layoff was breach of its collective bargaining agreement with the county.
The Appellate Division affirmed a lower court’s ruling that CSEA lacked standing to maintain the action. While couched in terms of a contract violation, the court said that there was no underlying contract provision involved.
As to CSEA’s standing under the Aeneas McDonald Police Benevolent Association doctrine, the court found that it failed to meet the third test set by the Court of Appeals since the participation of the individuals affected was required in this instance.
The case arose as the result of the county administration terminating or demoting some 2,000 employees in response to its 1992 “budget crisis.” One employee who was affected by this, Joseph E. Torre, successfully challenged the action taken against him as violative of the doctrine of legislative equivalency [Torre v County of Nassau, 86 NY2d 421].
Simply stated, the doctrine holds that “a position created by a legislative act must be abolished by a correlative legislative act.” In other words, a county administrator may not unilaterally abolish a position created by the legislature.
A number of county workers affected by the abolition of positions in 1992 have attempted to interpose legislative equivalency claims in an effort to attain reinstatement and back salary.
When CSEA alleged a breach of the controlling Taylor Law agreement in an effort to win reinstatement for individuals in the collective bargaining unit laid off in 1992, the court said that “it is clear that, in reality, the CSEA is attempting to assert a Torre legislative equivalency claim on behalf of all aggrieved employees.” Since it is “the nature and origin of the wrong, the substance and not the form, which controls,” the Appellate Division held that the lower court’s dismissal of CSEA’s petition was correct.
According to the ruling, “the claimed wrong and the rights sought to be enforced arise outside the four corners of the collective bargaining agreement.” Therefore, CSEA had to show that it satisfied the three-prong test set out in the Aeneas McDonald decision in order to maintain the action. The Appellate Division said that CSEA failed to meet the “third prong of the test.”
The Appellate Division ruled that the individual circumstances of each employee would have to be considered to determine whether or not the Torre rule was violated.
The court noted that it had earlier addressed the issue in Weitzenbergh v Nassau County Department of Recreation and Parks, 249 AD2d 538. It denied class action status in the Weitzenbergh case, noting that “there were numerous differences among members of the proposed class and no evidentiary support for the proposition that their positions were improperly abolished under the doctrine of legislative equivalency.”
.
Suing for damages for on-the-job personal injury pursuant to General Municipal Law Section 205-e and the firefighter’s rule
Suing for damages for on-the-job personal injury pursuant to General Municipal Law Section 205-e and the firefighter’s rule
Flynn v City of New York, App. Div., First Department, 258 AD2d 129
[Decided with Marron v City of New York, App. Div., First Department]
Section 205-e of the General Municipal Law grants police officers, or their representatives, the right to bring legal action to recover damages for personal injuries or death resulting from another person’s negligence in failing to comply with statutory or regulatory requirements. In addition, Section 205-e provides that “liability may be based on a fellow officer’s conduct,” [see Gonzalez v Iocovellosi, 249 AD2d 143].
In the Flynn and Marron cases the question was whether officers injured in a riot could sue the department under Section 205-e if they could show that their injuries stemmed from a commanding officer’s failure to follow provisions set out in a police department’s training manual and its patrol guide.
The Appellate Division concluded that a “Police Department’s training manual and Patrol Guide provisions cannot serve as the basis of such a claim.” It said that suing pursuant to Section 205-e is limited to the negligent non-compliance with the requirements of any governmental statutes, ordinances, rules, orders and requirements, citing Desiderio v City of New York, 236 AD2d 224.
Kevin Flynn and Steven Marron, both New York City police officers, claimed that the injuries they suffered during a street disturbance were the direct result of Deputy Inspector Michael Julian’s order not to bring any “hats [or] bats” and other protective gear “traditionally used by police in riot situations” despite their availability in a nearby police van. Julian was the commanding officer of their precinct and the officer in charge.
Flynn contended that General Municipal Law Section 205-e applied because the “mandates and requirements” of the Police Department’s Patrol Guide and the Department’s “temporary and standard operating procedures” were not followed.
Disagreeing with Flynn’s argument, the Appellate Division said that “[t]he facts here present a compelling case for the application of the firefighter’s rule.” The rule recognizes that public safety work is inherently dangerous, and is a general bar to officers suing for line-of-duty injuries. The court said that both Flynn and Marron “knew that the crowd was rioting and were well aware of the dangers presented.”
This situation, according to the decision “is hardly a case where ... a patrolman was injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving [the] injury”. The court said that the “record indisputably discloses” that both Flynn and Marron were performing a police function that put them at a heightened risk of injury.
Although the Court of Appeals did not consider the issue of whether an internal departmental guide or training manual constitutes a governmental rule or requirement in the Desmond case [Desmond v City of New York, 88 NY2d 455], it held that Section 205-e was not “intended to give police officers a right to sue for breaches of any and all governmental pronouncements of whatever type and regardless of how general or specific those pronouncements might be.”
The Appellate Division said that in enacting Section 205-e the Legislature did not intend to “upset the settled view that the violation of internal agency memoranda or manuals imposing a higher standard of care on a defendant than that imposed by law could not be the basis of liability against governmental entities.” Thus, said the court, the Supreme Court judge should have granted the City’s motion for summary judgment and dismissed Flynn’s and Marron’s petitions.
The Appellate Division characterized the City’s patrol guide and its training manual as follows:
Neither the Patrol Guide nor the training manual constitutes a well-developed body of law and regulation. They do not even constitute formal rules of the Police Department. The Patrol Guide is an internal manual intended solely for members of the Police Department. It is a compilation of hundreds of pages of guidelines covering every aspect of police life and conduct, including subjects as diverse as personal appearance, financial restrictions, vacation policy, residency requirements and salute courtesies. The Guide serves as the vehicle by which the Police Department regulates itself. That, in some circumstances, certain provisions of the Patrol Guide may also affect the public does not undermine its essentially intra-agency character.
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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.
Flynn v City of New York, App. Div., First Department, 258 AD2d 129
[Decided with Marron v City of New York, App. Div., First Department]
Section 205-e of the General Municipal Law grants police officers, or their representatives, the right to bring legal action to recover damages for personal injuries or death resulting from another person’s negligence in failing to comply with statutory or regulatory requirements. In addition, Section 205-e provides that “liability may be based on a fellow officer’s conduct,” [see Gonzalez v Iocovellosi, 249 AD2d 143].
In the Flynn and Marron cases the question was whether officers injured in a riot could sue the department under Section 205-e if they could show that their injuries stemmed from a commanding officer’s failure to follow provisions set out in a police department’s training manual and its patrol guide.
The Appellate Division concluded that a “Police Department’s training manual and Patrol Guide provisions cannot serve as the basis of such a claim.” It said that suing pursuant to Section 205-e is limited to the negligent non-compliance with the requirements of any governmental statutes, ordinances, rules, orders and requirements, citing Desiderio v City of New York, 236 AD2d 224.
Kevin Flynn and Steven Marron, both New York City police officers, claimed that the injuries they suffered during a street disturbance were the direct result of Deputy Inspector Michael Julian’s order not to bring any “hats [or] bats” and other protective gear “traditionally used by police in riot situations” despite their availability in a nearby police van. Julian was the commanding officer of their precinct and the officer in charge.
Flynn contended that General Municipal Law Section 205-e applied because the “mandates and requirements” of the Police Department’s Patrol Guide and the Department’s “temporary and standard operating procedures” were not followed.
Disagreeing with Flynn’s argument, the Appellate Division said that “[t]he facts here present a compelling case for the application of the firefighter’s rule.” The rule recognizes that public safety work is inherently dangerous, and is a general bar to officers suing for line-of-duty injuries. The court said that both Flynn and Marron “knew that the crowd was rioting and were well aware of the dangers presented.”
This situation, according to the decision “is hardly a case where ... a patrolman was injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving [the] injury”. The court said that the “record indisputably discloses” that both Flynn and Marron were performing a police function that put them at a heightened risk of injury.
Although the Court of Appeals did not consider the issue of whether an internal departmental guide or training manual constitutes a governmental rule or requirement in the Desmond case [Desmond v City of New York, 88 NY2d 455], it held that Section 205-e was not “intended to give police officers a right to sue for breaches of any and all governmental pronouncements of whatever type and regardless of how general or specific those pronouncements might be.”
The Appellate Division said that in enacting Section 205-e the Legislature did not intend to “upset the settled view that the violation of internal agency memoranda or manuals imposing a higher standard of care on a defendant than that imposed by law could not be the basis of liability against governmental entities.” Thus, said the court, the Supreme Court judge should have granted the City’s motion for summary judgment and dismissed Flynn’s and Marron’s petitions.
The Appellate Division characterized the City’s patrol guide and its training manual as follows:
Neither the Patrol Guide nor the training manual constitutes a well-developed body of law and regulation. They do not even constitute formal rules of the Police Department. The Patrol Guide is an internal manual intended solely for members of the Police Department. It is a compilation of hundreds of pages of guidelines covering every aspect of police life and conduct, including subjects as diverse as personal appearance, financial restrictions, vacation policy, residency requirements and salute courtesies. The Guide serves as the vehicle by which the Police Department regulates itself. That, in some circumstances, certain provisions of the Patrol Guide may also affect the public does not undermine its essentially intra-agency character.
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Involuntary placement of employee on medical leave
Involuntary placement of employee on medical leave
Evans v NYS Dept. of Health et al, 2nd Cir., No. 98-7160(L)
Due process requirements generally prevent public employers in New York State from removing employees or placing them on leave without a hearing. Exceptions are permitted under Section 72 of the Civil Service Law, which permits public employers to place individuals on involuntary medical leave without first having a hearing in cases in which the appointing authority determines that the continued presence of the individual on the job constitutes a hazard to the employee, or his or her co-workers or to the public. [Section 72.5]*
Brenda Evans charged that the State Department of Health had violated her constitutional right to due process when she was involuntarily placed on medical leave pursuant to Section 72.
Evans suffered a seizure and initially actually placed herself on medical leave. As it frequently the case in such situations, however, Evans viewed her medical leave being converted into “involuntary sick leave” when the appointing authority refused to allow her to return to duty unless she underwent a medical evaluation and was found qualified to do so.
The Second Circuit U.S. Court of Appeals in New York found in favor of the department. The ruling suggests that if an employer follows the procedures mandated by Section 72, its actions will pass judicial scrutiny on due process grounds. The court noted that the law allows the employer to place the employee on involuntary medical leave following a medical examination as long as the individual has a “right to a subsequent hearing.”
The Rules of the State Civil Service Commission provide that employee on sick-leave may, as a condition for return, be required to undergo medical examination [4 NYCRR 28-1.3(e)]. Conceding that Evans had an “important interest in continued employment,” the Circuit Court concluded that such an interest is limited where the employee is placed on medical leave rather than terminated.*
“[I]n determining what process is due, account must be taken of the length and finality of the deprivation” said the court. “On the facts of this case,” the court held that “it was reasonable to believe that [Evans] had been afforded due process.” The decision notes that prior to the seizure, Evans’ examining physician had recommended that she be placed on medical leave. But the department, consistent with the mandates of Section 72, initially allowed her to remain at work pending a hearing.
Applying a balancing test, the decision states that “[o]n the other side of the scale,” the appointing authority took reasonable steps to assure itself that placing Evans on medical leave was appropriate. “In light of those factors, and the State’s strong interest in protecting itself against disruptive employee behavior, it was reasonable to believe that [Evans] had been afforded due process.”
The Circuit Court said that “[t]o determine the process due [issue], we must weigh (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used, and the probable value of additional or different procedural safeguards; and (3) the government’s interest,” citing Mathews v Eldridge, 424 U.S. 319.
In addition, Evans filed claims under 42 USC. Sections 1981, 1983 and 1985 alleging interference with her constitutional free speech, property and contract rights and that she was subjected to a hostile work environment. Named as defendants were various state entities. The decision notes that “neither a State nor its officials acting in their official capacities are ‘persons’ under Section 1983,” citing Will v Michigan Department of State Police, 491 U.S. 58.
Evans also ran in a wall in her effort to sue certain named officials “in their respective personal capacities.” Her attempt to sue these officials in their “personal capacity,” said the court, is barred by the qualified immunity held by these officials.
The doctrine of qualified immunity protects government officials from personal liability if their conduct either: (1) “did not violate clearly established rights of which a reasonable person would have known, or” (2) “it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.”
* Civil Service Law Section 72 provides for leaves of absence resulting from non-work related injury or illness. Civil Service Law Section 71 [Workers’ Compensation Leave] provides for leaves of absence required as the result of a work-connected injury or illness.
* Section 73 of the Civil Service Law authorizes the “termination” of an individual who has been continuously absent on Section 72 leave for at least one year. However, this “termination” is not the same as a “dismissal” since the individual has an absolute right to return to the position, or a similar position, or be placed on a preferred list, if he or she applies for reinstatement within one year after his or her disability ends.
.
Evans v NYS Dept. of Health et al, 2nd Cir., No. 98-7160(L)
Due process requirements generally prevent public employers in New York State from removing employees or placing them on leave without a hearing. Exceptions are permitted under Section 72 of the Civil Service Law, which permits public employers to place individuals on involuntary medical leave without first having a hearing in cases in which the appointing authority determines that the continued presence of the individual on the job constitutes a hazard to the employee, or his or her co-workers or to the public. [Section 72.5]*
Brenda Evans charged that the State Department of Health had violated her constitutional right to due process when she was involuntarily placed on medical leave pursuant to Section 72.
Evans suffered a seizure and initially actually placed herself on medical leave. As it frequently the case in such situations, however, Evans viewed her medical leave being converted into “involuntary sick leave” when the appointing authority refused to allow her to return to duty unless she underwent a medical evaluation and was found qualified to do so.
The Second Circuit U.S. Court of Appeals in New York found in favor of the department. The ruling suggests that if an employer follows the procedures mandated by Section 72, its actions will pass judicial scrutiny on due process grounds. The court noted that the law allows the employer to place the employee on involuntary medical leave following a medical examination as long as the individual has a “right to a subsequent hearing.”
The Rules of the State Civil Service Commission provide that employee on sick-leave may, as a condition for return, be required to undergo medical examination [4 NYCRR 28-1.3(e)]. Conceding that Evans had an “important interest in continued employment,” the Circuit Court concluded that such an interest is limited where the employee is placed on medical leave rather than terminated.*
“[I]n determining what process is due, account must be taken of the length and finality of the deprivation” said the court. “On the facts of this case,” the court held that “it was reasonable to believe that [Evans] had been afforded due process.” The decision notes that prior to the seizure, Evans’ examining physician had recommended that she be placed on medical leave. But the department, consistent with the mandates of Section 72, initially allowed her to remain at work pending a hearing.
Applying a balancing test, the decision states that “[o]n the other side of the scale,” the appointing authority took reasonable steps to assure itself that placing Evans on medical leave was appropriate. “In light of those factors, and the State’s strong interest in protecting itself against disruptive employee behavior, it was reasonable to believe that [Evans] had been afforded due process.”
The Circuit Court said that “[t]o determine the process due [issue], we must weigh (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used, and the probable value of additional or different procedural safeguards; and (3) the government’s interest,” citing Mathews v Eldridge, 424 U.S. 319.
In addition, Evans filed claims under 42 USC. Sections 1981, 1983 and 1985 alleging interference with her constitutional free speech, property and contract rights and that she was subjected to a hostile work environment. Named as defendants were various state entities. The decision notes that “neither a State nor its officials acting in their official capacities are ‘persons’ under Section 1983,” citing Will v Michigan Department of State Police, 491 U.S. 58.
Evans also ran in a wall in her effort to sue certain named officials “in their respective personal capacities.” Her attempt to sue these officials in their “personal capacity,” said the court, is barred by the qualified immunity held by these officials.
The doctrine of qualified immunity protects government officials from personal liability if their conduct either: (1) “did not violate clearly established rights of which a reasonable person would have known, or” (2) “it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.”
* Civil Service Law Section 72 provides for leaves of absence resulting from non-work related injury or illness. Civil Service Law Section 71 [Workers’ Compensation Leave] provides for leaves of absence required as the result of a work-connected injury or illness.
* Section 73 of the Civil Service Law authorizes the “termination” of an individual who has been continuously absent on Section 72 leave for at least one year. However, this “termination” is not the same as a “dismissal” since the individual has an absolute right to return to the position, or a similar position, or be placed on a preferred list, if he or she applies for reinstatement within one year after his or her disability ends.
.
Designating employee as managerial or confidential
Designating employee as managerial or confidential
Lippman v PERB, App. Div., Third Dept., 263 AD2d 891
The designation of managerial and confidential employees within the meaning of the Taylor Law is important to both employers and unions. In the Lippman case the Appellate Division, Third Department, set out the criteria courts follow in reviewing determinations by the Public Employment Relations Board [PERB] concerning the designation of such personnel.
PERB denied a request by the Office of Court Administration to designate nine high-level, nonjudicial Unified Court System [UCS] employees as managerial or confidential pursuant to Civil Service Law Section 201(7).
Employees designated “managerial or confidential” are excluded from the definition of public employees and are generally not covered “by the myriad of rights and protections afforded to public employees under the Taylor Law.”
The nine individuals served in position with the Court of Appeals, the Law Reporting Bureau and the First and Second Appellate Divisions and were then in a negotiating unit represented by the Civil Service Employees Association, Local 1000.
The Appellate Division affirmed PERB’s determination denying the nine managerial or confidential status on the authority of Court of Appeals decision in Rosen v Public Employment Relations Board, 72 NY2d 42.
Although UCS contended that the incumbents should designated managerial “based upon their role in the policy-making process of the courts where they work,” PERB had found that the nine did not “formulate policy” nor did they have a major role in personnel administration as contemplated by Civil Service Law Section 201(7)(a).
PERB’s “long-standing definitions of policy formulation” includes both “a person who has the authority or responsibility to select among options and to put a proposed policy into effect,” and a person “who participates with regularity in the essential process which results in a policy proposal and the decision to put such a proposal into effect.”
UCS contended that “employees need not be the ultimate decision makers to be designated as managerial policy formulators, and that it is sufficient if they assist the ultimate decision makers.” PERB, said the court, has recognized that the “definition of a policymaker is, and must be, sufficiently broad to include those relatively few individuals who directly assist the ultimate decision makers in reaching the decisions necessary to the conduct of the business of government.”
However, every employee who advise the ultimate decision makers is not automatically a policy formulator to be designated as managerial and excluded from the Taylor Law’s protections. Rather, the employer must demonstrate that the particular employee participates in the essential processes by which the employer makes its decisions regarding the department’s mission and the means by which those policy objectives can best be achieved.
The court said that it would defer to the expert charged with administering the Taylor Law -- PERB -- in view of its expertise with respect to the fundamental policies underlying that law.*
As to the standard the Appellate Division used: “‘[s]o long as [PERB’s] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections ... ‘“, the court said it would accept PERB’s construction if reasonable and not arbitrary or irrational, [Village of Lynbrook v PERB, 48 NY2d 398].
The Court said that “[t]he determination of who “directly assists” the ultimate decision makers necessarily involves drawing distinctions and lines among employees based, inter alia [among other things], upon the nature, timing and level of their involvement in the decision-making processes, and upon the practices and hierarchy of the employer.”
Based on the record before it, the Appellate Division concluded, PERB acted rationally in making such distinctions and determinations regarding these employees.
What about “supervisory employees working with or for managerial employees.” The decision notes that such personnel “are not automatically or presumably confidential employees within the meaning of Civil Service Law Section 201(7)(a)(ii).” “Indeed,” said the court, “knowledge of personnel or disciplinary matters is often inherent in supervisory positions and does not warrant a confidential designation where it is limited and does not encompass labor relations information significant to the basic mission of the employer.”
* In contrast, the Appellate Division pointed out that “where ... the question is one of pure statutory construction,” dependent only on accurate understanding of the legislative intent, judicial review is less restricted as “statutory construction is the function of the courts.”
.
Lippman v PERB, App. Div., Third Dept., 263 AD2d 891
The designation of managerial and confidential employees within the meaning of the Taylor Law is important to both employers and unions. In the Lippman case the Appellate Division, Third Department, set out the criteria courts follow in reviewing determinations by the Public Employment Relations Board [PERB] concerning the designation of such personnel.
PERB denied a request by the Office of Court Administration to designate nine high-level, nonjudicial Unified Court System [UCS] employees as managerial or confidential pursuant to Civil Service Law Section 201(7).
Employees designated “managerial or confidential” are excluded from the definition of public employees and are generally not covered “by the myriad of rights and protections afforded to public employees under the Taylor Law.”
The nine individuals served in position with the Court of Appeals, the Law Reporting Bureau and the First and Second Appellate Divisions and were then in a negotiating unit represented by the Civil Service Employees Association, Local 1000.
The Appellate Division affirmed PERB’s determination denying the nine managerial or confidential status on the authority of Court of Appeals decision in Rosen v Public Employment Relations Board, 72 NY2d 42.
Although UCS contended that the incumbents should designated managerial “based upon their role in the policy-making process of the courts where they work,” PERB had found that the nine did not “formulate policy” nor did they have a major role in personnel administration as contemplated by Civil Service Law Section 201(7)(a).
PERB’s “long-standing definitions of policy formulation” includes both “a person who has the authority or responsibility to select among options and to put a proposed policy into effect,” and a person “who participates with regularity in the essential process which results in a policy proposal and the decision to put such a proposal into effect.”
UCS contended that “employees need not be the ultimate decision makers to be designated as managerial policy formulators, and that it is sufficient if they assist the ultimate decision makers.” PERB, said the court, has recognized that the “definition of a policymaker is, and must be, sufficiently broad to include those relatively few individuals who directly assist the ultimate decision makers in reaching the decisions necessary to the conduct of the business of government.”
However, every employee who advise the ultimate decision makers is not automatically a policy formulator to be designated as managerial and excluded from the Taylor Law’s protections. Rather, the employer must demonstrate that the particular employee participates in the essential processes by which the employer makes its decisions regarding the department’s mission and the means by which those policy objectives can best be achieved.
The court said that it would defer to the expert charged with administering the Taylor Law -- PERB -- in view of its expertise with respect to the fundamental policies underlying that law.*
As to the standard the Appellate Division used: “‘[s]o long as [PERB’s] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections ... ‘“, the court said it would accept PERB’s construction if reasonable and not arbitrary or irrational, [Village of Lynbrook v PERB, 48 NY2d 398].
The Court said that “[t]he determination of who “directly assists” the ultimate decision makers necessarily involves drawing distinctions and lines among employees based, inter alia [among other things], upon the nature, timing and level of their involvement in the decision-making processes, and upon the practices and hierarchy of the employer.”
Based on the record before it, the Appellate Division concluded, PERB acted rationally in making such distinctions and determinations regarding these employees.
What about “supervisory employees working with or for managerial employees.” The decision notes that such personnel “are not automatically or presumably confidential employees within the meaning of Civil Service Law Section 201(7)(a)(ii).” “Indeed,” said the court, “knowledge of personnel or disciplinary matters is often inherent in supervisory positions and does not warrant a confidential designation where it is limited and does not encompass labor relations information significant to the basic mission of the employer.”
* In contrast, the Appellate Division pointed out that “where ... the question is one of pure statutory construction,” dependent only on accurate understanding of the legislative intent, judicial review is less restricted as “statutory construction is the function of the courts.”
.
Increasing workday hours held to adversely affect employee leave credits
Increasing workday hours held to adversely affect employee leave credits
Nagy v Board, Sup. Ct., Conn, #16003
Connecticut’s Supreme Court ruled that increasing the workday hours of state employees from seven hours to eight hours per day “devaluates” their accrued annual and sick leave credits. The remedy: increase the value of the employees’ annual and sick leave credits pro rata to the increase in their workday.
Two state assistant attorney generals, Robert A. Nagy and Hugh Barber, sued Connecticut contending that their standard seven-hour workday had been gradually lengthened to eight hours and this resulted in the devaluation of their previously earned leave accruals. The basic argument advanced by Connecticut: the relevant law provided for granting, and using, vacation and sick leave in “hour units” and therefore employees were to be charged on an “hour for hour” bases regardless of the employees’ rate of leave credit accumulation.
Nagy and Barber, on the other hand, contended that Connecticut’s interpretation resulted in their having to use eight hours of credit to cover a day of absence despite the fact that they had previously been limited to accruing credits based on a seven-hour workday: that is, they had accrued a day of credit equated to seven hours of leave time but were now required to use eight hours of leave time credit if they were absent for a day.
The court agreed and in effect held that Nagy and Barber were being “overcharged” leave credits for each “eight-hour day” of absence under the circumstances. It directed Connecticut to correct the situation.
.
Nagy v Board, Sup. Ct., Conn, #16003
Connecticut’s Supreme Court ruled that increasing the workday hours of state employees from seven hours to eight hours per day “devaluates” their accrued annual and sick leave credits. The remedy: increase the value of the employees’ annual and sick leave credits pro rata to the increase in their workday.
Two state assistant attorney generals, Robert A. Nagy and Hugh Barber, sued Connecticut contending that their standard seven-hour workday had been gradually lengthened to eight hours and this resulted in the devaluation of their previously earned leave accruals. The basic argument advanced by Connecticut: the relevant law provided for granting, and using, vacation and sick leave in “hour units” and therefore employees were to be charged on an “hour for hour” bases regardless of the employees’ rate of leave credit accumulation.
Nagy and Barber, on the other hand, contended that Connecticut’s interpretation resulted in their having to use eight hours of credit to cover a day of absence despite the fact that they had previously been limited to accruing credits based on a seven-hour workday: that is, they had accrued a day of credit equated to seven hours of leave time but were now required to use eight hours of leave time credit if they were absent for a day.
The court agreed and in effect held that Nagy and Barber were being “overcharged” leave credits for each “eight-hour day” of absence under the circumstances. It directed Connecticut to correct the situation.
.
Oct 2, 2010
Governor Paterson names New York State’s Chief Diversity Officer
Governor Paterson names New York State’s Chief Diversity Officer
Source: Office of the Governor
N.B. On October 1, 2010 Governor David A. Paterson announced that Carra Wallace has declined the appointment to the position of Chief Diversity Officer of New York State.
The Governor has asked Charlotte Hitchcock, his Chief of Staff, to assume the duties of this statutory role until December 31. In conjunction with the Governor's Counsel's office, Ms. Hitchcock was the point person for negotiations with the Legislature on the successful passage of this bill.
Governor Paterson had initially appointed Carra Wallace as the State’s first Chief Diversity Officer effective October 15, 2010. This position in the Executive Chamber was established pursuant to §4-a of the Executive Law.*
The Chief Diversity Officer is one of three positions in the Executive Chamber created by law. The other two are the “Secretary to the Governor” and the “Counsel to the governor.”**
According to the Office of the Governor, the Chief Diversity Officer's responsibilities include:
• Advising the Governor and the agencies regarding any measures necessary to ensure full compliance with Article fifteen-a of the Executive Law, the statute governing contracting with minority and women's business enterprises;
• Engaging in other actions assigned to him or her by the Governor relating to diversity in hiring or promotion of the State workforce and in encouraging diversity practices;
• Advising and assisting the Governor in formulating policies relating to workforce diversity and minority and women's business enterprises;
• Working with the director of the Division of Minority and Women's Business Development to prepare an annual plan for ensuring full compliance with article fifteen-a;
• Serving as a member of the State procurement council;
• Serving as the Governor's liaison with organizations representing minority and women-owned business enterprises and other organizations related to diversity in the State workforce and in State contracting;
• Serving as the Governor's liaison to the small business advisory council for issues related to the creation of a diverse workforce and State procurement practices relating to minority and women-owned business enterprises; and
• Reviewing and consulting with the director of minority and women's business development regarding policies relating to minority and women-owned business enterprise contract specialists at State agencies.
* §4-a of the Executive Law takes effect October 13, 2010.
** See §4 of the Executive Law.
.
Source: Office of the Governor
N.B. On October 1, 2010 Governor David A. Paterson announced that Carra Wallace has declined the appointment to the position of Chief Diversity Officer of New York State.
The Governor has asked Charlotte Hitchcock, his Chief of Staff, to assume the duties of this statutory role until December 31. In conjunction with the Governor's Counsel's office, Ms. Hitchcock was the point person for negotiations with the Legislature on the successful passage of this bill.
Governor Paterson had initially appointed Carra Wallace as the State’s first Chief Diversity Officer effective October 15, 2010. This position in the Executive Chamber was established pursuant to §4-a of the Executive Law.*
The Chief Diversity Officer is one of three positions in the Executive Chamber created by law. The other two are the “Secretary to the Governor” and the “Counsel to the governor.”**
According to the Office of the Governor, the Chief Diversity Officer's responsibilities include:
• Advising the Governor and the agencies regarding any measures necessary to ensure full compliance with Article fifteen-a of the Executive Law, the statute governing contracting with minority and women's business enterprises;
• Engaging in other actions assigned to him or her by the Governor relating to diversity in hiring or promotion of the State workforce and in encouraging diversity practices;
• Advising and assisting the Governor in formulating policies relating to workforce diversity and minority and women's business enterprises;
• Working with the director of the Division of Minority and Women's Business Development to prepare an annual plan for ensuring full compliance with article fifteen-a;
• Serving as a member of the State procurement council;
• Serving as the Governor's liaison with organizations representing minority and women-owned business enterprises and other organizations related to diversity in the State workforce and in State contracting;
• Serving as the Governor's liaison to the small business advisory council for issues related to the creation of a diverse workforce and State procurement practices relating to minority and women-owned business enterprises; and
• Reviewing and consulting with the director of minority and women's business development regarding policies relating to minority and women-owned business enterprise contract specialists at State agencies.
* §4-a of the Executive Law takes effect October 13, 2010.
** See §4 of the Executive Law.
.
Oct 1, 2010
OATH hearing officer denies 9-month postponement of disciplinary hearing while individual is on §72 disability leave
OATH hearing officer denies 9-month postponement of disciplinary hearing while individual is on §72 disability leave
New York City Department of Consumer Affairs v Santamaria, OATH Index #2455/10
NYPPL
The New York City Department of Consumer Affairs filed §75 disciplinary charges against Randi Santamaria alleging various acts of insubordination and “carelessness.” After several adjournments by both parties, Consumer Affairs asked the Administrative Law Judge to go forward with the disciplinary hearing scheduled for August 19 and 20, 2010.
Santamaria, however, had earlier requested leave under the Family Medical Leave Act based upon her mental health, her second request for such leave within the last two years. Consumer Affairs then had Santamaria evaluated by a psychiatrist. The psychiatrist found Santamaria “mentally unfit to work” and Consumer Affairs placed her on “a one-year involuntary leave under §72 of the Civil Service Law” effective May 13, 2010.
Prior to the scheduled disciplinary hearing Santamaria’s attorney asked for a stay of the §75 action based on Santamaria being place on §72 leave by the agency. Santamaria's attorney also stated that he was requesting a stay pending “the resolution" of the §72 proceedings and suggested that "should [Santamaria] not be able to return to work within the year, she could be terminated under §73 and the §75 case would be rendered moot.”*
Although OATH’s Administrative Law Judge John B. Spooner said that he was “skeptical of the legal soundness” of Consumer Affair’s decision “to proceed with a §75 proceeding immediately after finding an employee unfit and placing her out on involuntary leave, based upon the same acts charged in the misconduct case … nevertheless, [Santamaria's] request for a nine-month stay is problematic and cannot be granted.”**
Noting that an OATH Administrative Law Judge “possesses the power to adjourn an action ‘for good cause,’ lengthy adjournments due to another pending action have not been found to constitute sufficient cause and have generally been denied.”
Judge Spooner cited Department of Correction v. Noriega-Harvey, OATH Index No. 575/93, (“pendency of related litigation has apparently never been sufficient basis for grant of an indefinite adjournment of an OATH trial.”) and Department of Environmental Protection v. Bellach, OATH Index No. 1574/08 (denying respondent’s request for a stay of a disciplinary hearing during the pendency of criminal proceedings)” in support of his determination.
* This is not entirely accurate as an individual terminated from §72 leave pursuant to §73 of the Civil Service Law has the right to reinstatement to his or her former position in the event he or she applies for such reinstatement with the responsible civil service commission within one year after the termination of such disability. In the event the commission’s medical examiner certifies that the individual is physically and mentally fit to perform the duties of his or her former position, he or she is to be reinstated if a suitable position is available or place on a preferred list, depending on the situation.
** On this point ALJ Spooner said that at “the very least, the medical officer’s finding of unfitness in May 2010 would appear to significantly undermine the agency’s ability to establish, at a §75 hearing, that [Santamaria's] actions constituted intentional misconduct. At worst, seeking to punish an employee for conduct caused by a disability could arguably defy the entire policy underlying the legislature’s enactment of Civil Service Law §72 as an alternative to §75,” citing Dep’t of Housing Preservation & Development v. Chambart, OATH Index No. 380/84..
The decision is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-2455md.pdf
New York City Department of Consumer Affairs v Santamaria, OATH Index #2455/10
NYPPL
The New York City Department of Consumer Affairs filed §75 disciplinary charges against Randi Santamaria alleging various acts of insubordination and “carelessness.” After several adjournments by both parties, Consumer Affairs asked the Administrative Law Judge to go forward with the disciplinary hearing scheduled for August 19 and 20, 2010.
Santamaria, however, had earlier requested leave under the Family Medical Leave Act based upon her mental health, her second request for such leave within the last two years. Consumer Affairs then had Santamaria evaluated by a psychiatrist. The psychiatrist found Santamaria “mentally unfit to work” and Consumer Affairs placed her on “a one-year involuntary leave under §72 of the Civil Service Law” effective May 13, 2010.
Prior to the scheduled disciplinary hearing Santamaria’s attorney asked for a stay of the §75 action based on Santamaria being place on §72 leave by the agency. Santamaria's attorney also stated that he was requesting a stay pending “the resolution" of the §72 proceedings and suggested that "should [Santamaria] not be able to return to work within the year, she could be terminated under §73 and the §75 case would be rendered moot.”*
Although OATH’s Administrative Law Judge John B. Spooner said that he was “skeptical of the legal soundness” of Consumer Affair’s decision “to proceed with a §75 proceeding immediately after finding an employee unfit and placing her out on involuntary leave, based upon the same acts charged in the misconduct case … nevertheless, [Santamaria's] request for a nine-month stay is problematic and cannot be granted.”**
Noting that an OATH Administrative Law Judge “possesses the power to adjourn an action ‘for good cause,’ lengthy adjournments due to another pending action have not been found to constitute sufficient cause and have generally been denied.”
Judge Spooner cited Department of Correction v. Noriega-Harvey, OATH Index No. 575/93, (“pendency of related litigation has apparently never been sufficient basis for grant of an indefinite adjournment of an OATH trial.”) and Department of Environmental Protection v. Bellach, OATH Index No. 1574/08 (denying respondent’s request for a stay of a disciplinary hearing during the pendency of criminal proceedings)” in support of his determination.
* This is not entirely accurate as an individual terminated from §72 leave pursuant to §73 of the Civil Service Law has the right to reinstatement to his or her former position in the event he or she applies for such reinstatement with the responsible civil service commission within one year after the termination of such disability. In the event the commission’s medical examiner certifies that the individual is physically and mentally fit to perform the duties of his or her former position, he or she is to be reinstated if a suitable position is available or place on a preferred list, depending on the situation.
** On this point ALJ Spooner said that at “the very least, the medical officer’s finding of unfitness in May 2010 would appear to significantly undermine the agency’s ability to establish, at a §75 hearing, that [Santamaria's] actions constituted intentional misconduct. At worst, seeking to punish an employee for conduct caused by a disability could arguably defy the entire policy underlying the legislature’s enactment of Civil Service Law §72 as an alternative to §75,” citing Dep’t of Housing Preservation & Development v. Chambart, OATH Index No. 380/84..
The decision is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-2455md.pdf
Electronic document preservation
Electronic document preservation
Information concerning the retention and preservation of electronic records prepared by the State and political subdivisions of the State is available at http://www.archives.nysed.gov/a/records/mr_erecords.shtml
Major topics addressed include:
1. Conducting a records inventory
2. Inventorying electronic records, [Electronic Records Inventory workshop];
3. Organizing electronic records;
4. Preservation of electronic records for the “long-term;” and
5. Security of electronic records including protecting records in the event of fire, flood, vandalism, viruses, hackers and “hard drive crashes.”
The staff of the New York State Archives note that “Computers and other electronic devices create many of the new records we use today.” Also noted is the fact that “These records, although electronic in format, are the same as records in other formats. Electronic records show how you conduct business, make decisions, and carry out your work. They are evidence of decisions and actions. Fundamental records management principles apply to electronic records and all other record formats.”
Workshops addressing the basics concerning the care of electronic records are offered by the Office of the State Archives and are listed on the Internet at Managing Electronic Records .
The State Archives administers the Local Government Records Management Improvement Fund (LGRMIF) to assist local governments manage their records, including their electronic record-keeping systems. Contact the State Archives at (518) 474-6926 or via e-mail, or contact your Regional Advisory Officer for information concerning such assistance.
.NYPPL
Information concerning the retention and preservation of electronic records prepared by the State and political subdivisions of the State is available at http://www.archives.nysed.gov/a/records/mr_erecords.shtml
Major topics addressed include:
1. Conducting a records inventory
2. Inventorying electronic records, [Electronic Records Inventory workshop];
3. Organizing electronic records;
4. Preservation of electronic records for the “long-term;” and
5. Security of electronic records including protecting records in the event of fire, flood, vandalism, viruses, hackers and “hard drive crashes.”
The staff of the New York State Archives note that “Computers and other electronic devices create many of the new records we use today.” Also noted is the fact that “These records, although electronic in format, are the same as records in other formats. Electronic records show how you conduct business, make decisions, and carry out your work. They are evidence of decisions and actions. Fundamental records management principles apply to electronic records and all other record formats.”
Workshops addressing the basics concerning the care of electronic records are offered by the Office of the State Archives and are listed on the Internet at Managing Electronic Records .
The State Archives administers the Local Government Records Management Improvement Fund (LGRMIF) to assist local governments manage their records, including their electronic record-keeping systems. Contact the State Archives at (518) 474-6926 or via e-mail, or contact your Regional Advisory Officer for information concerning such assistance.
.NYPPL
EEOC alleges female employee “pressured to enter into a sham marriage” constitutes sexual harassment
EEOC alleges female employee “pressured to enter into a sham marriage” constitutes sexual harassment
Source: Posted on the Internet in CCH Workday. Reproduced with permission. Copyright© CCH 2010, All rights reserved. If you wish to become a subscriber to CCH Workday, please go to http://www.employmentlawdaily.com/
“This is definitely not the garden-variety sexual harassment case — compelling employees to marry is a new twist,” said regional attorney Robert Canino of the EEOC’s Dallas district office.
“Asking women to marry as a part of their job duties or terms of employment is not only illegal under Title VII, but if the idea is to circumvent the immigration laws of the United States, the discriminatory treatment also puts the employees themselves in jeopardy of violating federal laws.”
The CCH item reports:
"Courtesy Building Services, a Texas-based janitorial and maintenance service, violated Title VII by subjecting a female employee to sexual harassment, including being pressured to marry a stranger from Thailand to promote his efforts toward citizenship, the EEOC charged in a recent lawsuit.
"According to the agency, Operations Manager Melissa Gaona was subjected to unlawful sexual harassment starting in 2005. In addition to lewd remarks said to her or in her presence by management personnel, she was asked by a manager to enter into marriage with a stranger, a non-citizen, to enhance his opportunity to achieve citizenship.
“Enduring supervisors’ comments about women’s bodies and accounts of visits to the local strip clubs shouldn’t be a job requirement,” said EEOC supervisory trial attorney Toby Wosk Costas.
“And pressuring a worker to enter into a marriage she doesn’t want, for ulterior motives, is simply unconscionable. It adds up to a hostile work environment that certainly violates federal laws against discrimination.
"In a suit filed in the Northern District of Texas, the EEOC seeks relief for Gaona as well as injunctive relief, including a court order to prevent the company from engaging in similar discriminatory conduct in the future; compensatory damages for emotional harm; and punitive damages to deter future acts of employment discrimination."
.NYPPL
Source: Posted on the Internet in CCH Workday. Reproduced with permission. Copyright© CCH 2010, All rights reserved. If you wish to become a subscriber to CCH Workday, please go to http://www.employmentlawdaily.com/
“This is definitely not the garden-variety sexual harassment case — compelling employees to marry is a new twist,” said regional attorney Robert Canino of the EEOC’s Dallas district office.
“Asking women to marry as a part of their job duties or terms of employment is not only illegal under Title VII, but if the idea is to circumvent the immigration laws of the United States, the discriminatory treatment also puts the employees themselves in jeopardy of violating federal laws.”
The CCH item reports:
"Courtesy Building Services, a Texas-based janitorial and maintenance service, violated Title VII by subjecting a female employee to sexual harassment, including being pressured to marry a stranger from Thailand to promote his efforts toward citizenship, the EEOC charged in a recent lawsuit.
"According to the agency, Operations Manager Melissa Gaona was subjected to unlawful sexual harassment starting in 2005. In addition to lewd remarks said to her or in her presence by management personnel, she was asked by a manager to enter into marriage with a stranger, a non-citizen, to enhance his opportunity to achieve citizenship.
“Enduring supervisors’ comments about women’s bodies and accounts of visits to the local strip clubs shouldn’t be a job requirement,” said EEOC supervisory trial attorney Toby Wosk Costas.
“And pressuring a worker to enter into a marriage she doesn’t want, for ulterior motives, is simply unconscionable. It adds up to a hostile work environment that certainly violates federal laws against discrimination.
"In a suit filed in the Northern District of Texas, the EEOC seeks relief for Gaona as well as injunctive relief, including a court order to prevent the company from engaging in similar discriminatory conduct in the future; compensatory damages for emotional harm; and punitive damages to deter future acts of employment discrimination."
.NYPPL
School board not required to adjusting teaching schedules to avoid a layoff
School board not required to adjusting teaching schedules to avoid a layoff
Soukey v Cohoes City School Dist., Commissioner of Education Decision 14,106
Faced with a reduced work schedule or a perhaps layoff, a teacher may ask the school board to adjust the schedules of other teachers in order to retain him or her in a full-time position. Is the school board obligated to honor such a request?
This was one of the elements in Donna Soukey’s appeal to the Commissioner of Education. Soukey, tenured as a health teacher, was employed in a 6/10’s health teacher position following the abolishment of a full-time health teacher position by the district. Soukey was the least senior tenured health teacher at the time.
Soukey argued that the district “could have adjusted the schedules of other teachers ... to facilitate her assignment to classes within her various certification areas in order to retain her in full-time service.” She provided the Commissioner with examples of how the district could have accomplished this.
The Commissioner pointed out that a school board is “not required to shuffle the schedules of teachers in tenure areas other than health merely because [she] happens to hold certification in those areas.”
Noting that Soukey was the least senior teacher in the health tenure area, the Commissioner said that her services as a full time teacher were properly reduced. Commissioner Mills concluded that Cohoes was not required to make scheduling adjustments that would affect teachers’ services in any other tenure area in an effort to retain Soukey as a full-time employee.
The major element in Soukey’s appeal was her claim that she was not the least senior teacher in the health tenure area. The Commissioner ruled that there was nothing in the record to support overturning the district’s seniority determinations with respect to the several teachers in the health tenure area involved in this appeal.
Another aspect of the appeal concerned Soukey request for “reimbursement for the costs of bringing this appeal” as part of the relief she sought. The Commissioner responded by pointing out that he “lacks authority to award such costs and attorney’s fees in an appeal under Education Law Section 310” and dismissed this branch of Soukey’s appeal as well.
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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NYPPL
Soukey v Cohoes City School Dist., Commissioner of Education Decision 14,106
Faced with a reduced work schedule or a perhaps layoff, a teacher may ask the school board to adjust the schedules of other teachers in order to retain him or her in a full-time position. Is the school board obligated to honor such a request?
This was one of the elements in Donna Soukey’s appeal to the Commissioner of Education. Soukey, tenured as a health teacher, was employed in a 6/10’s health teacher position following the abolishment of a full-time health teacher position by the district. Soukey was the least senior tenured health teacher at the time.
Soukey argued that the district “could have adjusted the schedules of other teachers ... to facilitate her assignment to classes within her various certification areas in order to retain her in full-time service.” She provided the Commissioner with examples of how the district could have accomplished this.
The Commissioner pointed out that a school board is “not required to shuffle the schedules of teachers in tenure areas other than health merely because [she] happens to hold certification in those areas.”
Noting that Soukey was the least senior teacher in the health tenure area, the Commissioner said that her services as a full time teacher were properly reduced. Commissioner Mills concluded that Cohoes was not required to make scheduling adjustments that would affect teachers’ services in any other tenure area in an effort to retain Soukey as a full-time employee.
The major element in Soukey’s appeal was her claim that she was not the least senior teacher in the health tenure area. The Commissioner ruled that there was nothing in the record to support overturning the district’s seniority determinations with respect to the several teachers in the health tenure area involved in this appeal.
Another aspect of the appeal concerned Soukey request for “reimbursement for the costs of bringing this appeal” as part of the relief she sought. The Commissioner responded by pointing out that he “lacks authority to award such costs and attorney’s fees in an appeal under Education Law Section 310” and dismissed this branch of Soukey’s appeal as well.
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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NYPPL
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Editor in Chief Harvey Randall served as Director of Personnel, State University of New York Central Administration; Director of Research, Governor's Office of Employee Relations; Principal Attorney, Counsel's Office, New York State Department of Civil Service; and Colonel, JAG, Command Headquarters, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
CAUTION
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For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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