FMLA leave for domestic partners: the new federal employee leave regulations a stalking horse

FMLA leave for domestic partners: the new federal employee leave regulations a stalking horse
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

During the last presidential campaign, candidate Obama favored expansion of the FMLA to allow an employee to take job-protected leave to care for a same sex domestic partner suffering with a serious health condition. Pending legislation (H.R. 3047) seeks to make such a change law. Currently, the Defense of Marriage Act excludes same-sex marriages, including civil unions or domestic partnerships, from FMLA coverage (by defining a "spouse" as member of the opposite sex).

Given the President's expressed support for changes to the FMLA, and the Democrats control of Congress (at least until mid-term elections this November), it is possible that legislation to modify the FMLA, including the addition of domestic partnerships, might be seriously considered.

With regard to expansion of the FMLA to cover same-sex partnerships, what that legislation might look like may be gleaned from recent regulatory changes made by the US Office of Personnel Management (OPM) allowing some federal employees to take leave (but not FMLA leave) for a domestic partner. See 75 FR 33491-33497 (June 14, 2010). The regulations are effective July 14, 2010.

On June 17, 2009, President Obama directed OPM to clarify that existing employment benefits enjoyed by federal workers extended to same-sex domestic partners. OPM did so by altering the definition of a "family member" to include a domestic partner in a committed relationship.

The benefits extended included the federal employees ability to use sick leave, funeral leave, voluntary leave transfer, voluntary leave bank, and emergency leave transfer in relation to .
Domestic partner means an adult in a committed relationship with another adult, including both same-sex and opposite-sex relationships.

Opposite-sex domestic partnerships would cover common law marriages in States that do not recognize common law marriages. In States that already recognize common law marriages, the inclusion of opposite-sex domestic partnerships suggests coverage for committed relationships that fall short of a common law marriage.

Committed relationship means one in which the employee, and the domestic partner of the employee, are each other's sole domestic partner (and are not married to or domestic partners with anyone else); and share responsibility for a significant measure of each other's common welfare and financial obligations. This includes, but is not limited to same-ex and opposite-sex relationships granted legal recognition by a State or the District of Columbia as a marriage or analogous relationship (e.g., civil union).

OPM rejected suggestions that it issue regulations governing what documentation an agency may request to substantiate a covered domestic partnership. It noted that agency's typically do not ask for documentation to substantiate leave to prove an employee's relationship with a parent, brother, sister, or spouse. OPM implied that, absent suspicion of leave abuse, it should follow that practice where an employee claims the need for leave for a domestic partner. Where leave abuse is suspected, OPM indicated that agencies have the existing authority to request documentation to substantiate a request for leave, and that they should follow the same procedures for all employees where they suspect leave abuse.

Mr. Bosland Comments: OPM's definition of a domestic partner in a committed relationship is, in my opinion, needlessly vague and over broad. Specifically, it is unclear what it means to "share responsibility for a significant measure of each other's common welfare and financial obligations." The terms are undefined. Other than rejecting application of the definition to a roommate, OPM fails to give examples to animate the meaning of this key phrase. Certainly, the phrase applies to common law marriages, civil unions, or domestic partnerships in States that recognize such relationships. It is unclear, at least to me, why OPM would not adopt a definition that ties the relationship to the attributes of a common law marriage, domestic partnership, or civil union, as those terms have been recognized by some States for years. Absent such a tether, OPM invites a flood of litigation to flesh out the contours of a committed relationship, particularly in the area above roommate and below recognized common law marriage, civil union, or domestic partnership. The point of a regulation is to give employers and employees useful guidance so that they know what to expect and can conform their conduct to meet legal obligations. This regulation, in my opinion, falls short of meeting that standard.

The above regulatory changes do not apply to the FMLA - yet. That will require modification of the Defense of Marriage Act (DOMA). If, however, this is any example of the standard to be applied in the event the DOMA and FMLA are modified to include domestic partnerships, employers and employees should be prepared for the tsunami of litigation that will ensue over the level of commitment to the relationship. The good news is that such a change should make the attorneys very happy.

Termination for cause may result in the loss of fringe benefits in retirement

Termination for cause may result in the loss of fringe benefits in retirement
Farrell v City of Rensselaer, NYS Supreme Court, Justice James B. Canfield, [Not selected for publication in the Official Reports]

Frequently the employer will provide health insurance and similar fringe benefits to its retirees. In some cases an employee who, upon leaving his or her employment, has "vested" his or her retirement benefits may be entitled to such fringe benefits at a later date.

Farrell decision considers an important related issue: What are the rights of a former employee to fringe benefits such as health insurance that the employer provides to individuals receiving a retirement allowance if the retired employee was terminated from employment as a result of having been found guilty of disciplinary charges?

This was the situation that faced City of Rensselaer police officer Edward W. Farrell after he was terminated from his position for misconduct: the City refused to continue his health insurance benefits following his separation.*

Farrell sued, claiming that he was entitled to such health insurance benefits because he had "retired before being terminated." He argued that the City's refusal to pay for his health insurance benefits upon his retirement was "arbitrary, capricious, unreasonable and unlawful."

The City contended that Farrell had not retired from its police department but had been terminated following disciplinary action. The City pointed out that it had rejected Farrell's "retirement note" that he had submitted an hour before disciplinary charges were served on him and that it had gone forward with the disciplinary action.

This is not an unusual situation.

An individual may decided to submit his or her resignation in anticipation of, or after being served with, disciplinary charges. For example, the New York State Civil Service Commission, which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, adopted a rule applicable to employees addressing this type of situation -- 4 NYCRR 5.3(b).

This rule provides that in the event disciplinary charges have been, or are about to be, filed against an employee, the appointing authority may elect to disregard a resignation filed by the employee and may proceed with the disciplinary action. Should the employee be found guilty, his or her separation is recorded as a dismissal rather than a resignation. Many municipal civil service commissions have adopted a similar rule.

In Farrell's case the court appears to have applied a similar rationale in dealing with a "retirement-disciplinary situation," holding that retirement, or the announcement of an intention to retire, does not bar the employer from proceeding with a disciplinary action.

Although Farrell claimed that he had retired from the police department prior to being served with disciplinary charges, Justice Canfield commented that:

Notwithstanding the New York State and Local Retirement System's use of the word "retirement" to describe the cessation of employment, there simply is no basis for concluding that Farrell "retired" from the Rensselaer Police Department.

An employee may advise his or her employer that he or she intends to retire as a matter of courtesy. To effect a retirement, however, the individual must file an application for retirement benefits with his or her retirement system. The employer does not have any authority to approve or disapprove such a retirement application submitted by the individual.**

In fact, there is no requirement that an individual who is eligible to receive a retirement benefit actually apply for such a benefit should he or she resign. He or she, if eligible, may elect to "vest" and defer his or her retirement until a later date.

Here, said the court, Rensselaer had a resolution in place providing for its continuing to pay for health insurance benefits "for those who retire from service...." The resolution, however, "does not expressly extend that benefit to those who are dismissed from service."

Justice Canfield's conclusion: Rensselaer's refusal to pay for Farrell's health insurance benefits "is consistent with the terms of the resolution."

* The decision implies that Farrell applied for, and was granted, a retirement allowance following his dismissal.

** Typically, a member of a public retirement system of this State must file his or her application for retirement at least 30 days but not more than 90 days prior to his or her effective date of retirement.

Disciplinary probation

Disciplinary probation
Feliciano v Safir, Supreme Court, [Not officially reported]
Garnett v Safir, 253 A.D.2d 700, Motion for leave to appeal denied, 92 N.Y.2d 817

The Feliciano Case:

Although the specific events underlying the Feliciano case are but rarely encountered, the decision demonstrates that an employee’s “disciplinary probation status” may follow the individual to a new agency upon his or her transfer if the new employer wishes to condition the approval of the transfer on the continuation in such status.

Nelson Feliciano became a New York City police officer when the New York City Transit Authority Police Department [TAPD] was merged with the New York City Police Department [NYPD] in April 1995. Feliciano was serving a “dismissal probation” as a result of his settlement of disciplinary charges that had been filed against him by TAPD when the merger took place.

NYPD required Feliciano to sign a waiver allowing it to assume jurisdiction over the disciplinary charges as a condition of his transfer to NYPD.

NYPD dismissed Feliciano effective October 30, 1997 without holding a pre-termination hearing because of his alleged misuse of sick leave.

Feliciano had called in sick on April 30, 1997. When an officer from the NYPD’s Absence Control and Investigations Unit (“ACIU”) appeared at Feliciano’s house at about 2:00 p.m. the next day, “Feliciano was inexplicably not at home.”

Feliciano called the ACIU and represented to one of the ACIU officers that he had a valid medical pass which excused his absence from his home between the hours of 4:00 p.m. and 8:00 p.m. through May 1, 1997. Upon checking, ACIU learned that Feliciano’s medical pass expired on April 23, 1997. When confronted with this information, Feliciano apologized for his “misstatement” about the validity of his medical pass. Ultimately NYPD dismissed Feliciano.

Claiming that “[w]ithout the waiver, the disciplinary matter could have been resolved in a much more favorable manner and ... [he] would not have been on probation,” Feliciano sued. He asked the court to order his reinstatement with back salary and benefits. In addition Feliciano contended that [1] Safir acted arbitrarily and capriciously by dismissing him without benefit of a pre-termination hearing; [2] the penalty imposed was excessive; and [3] the decision to terminate him was made in bad faith.

Justice Cozier dismissed Feliciano’s petition, noting that “[u]nless there is a demonstration of bad faith or a constitutionally or statutorily impermissible purpose, the Commissioner has broad discretion to terminate probationary employees at any time, without stating a reason, and without a pre-termination hearing.”

The decision notes that Feliciano failed to comply with sick-leave regulations, an infraction which was subject to summary dismissal. As Feliciano had abused the NYPD’s sick leave regulations, which go directly to his ability to perform his job duties in a satisfactory manner, Justice Cozier concluded that because Feliciano was a probationer, a pre-termination hearing was not required and ruled Feliciano’s dismissal from his position with NYPD lawful under the circumstances.


The Garrett Case:

The facts in the Garrett case are more typical of the disciplinary probation situations.

Renee Garrett, another New York City police officer, was found guilty of various disciplinary charges and was suspended without pay for 60 days. She was also placed on a “one-year disciplinary probationary dismissal” effective January 24, 1997. On July 9, 1997, the Commissioner terminated her.

According to the decision, Garrett’s disciplinary probation was imposed after she was found guilty following allegations that [1] she was absent without permission from her assigned post; [2] she failed to perform her duties as directed; and [3] she engaged in an oral altercation and was discourteous to a superior officer.

Garrett sued, challenging the underlying disciplinary action and penalty and, in addition, contending that she was unlawfully terminated as a probationer and that she was dismissed in bad faith.*

The Appellate Division, First Department, upheld Garrett’s dismissal, commenting that “her termination within the probationary period was validly premised upon misconduct predating the commencement of the probationary period.” It noted that she had been found guilty of charges filed against her and that “the penalty of probationary dismissal does not shock our sense of fairness, particularly in light of [Garrett’s] less than exemplary service record.”

The court then said that Garrett’s probationary termination was justified by an incident during the probationary period. According to the decision, Garrett was “late in relieving another officer from her post.”

Accordingly, Garrett had no right to a pre-termination hearing under the circumstances. As to Garrett’s claim that her termination was made in “bad faith,” the Appellate Division simply noted that “there is no credible evidence to support [her] allegations.”

* Garrett had challenged both the disciplinary determination of January 24, 1997 and her probationary termination of July 9, 1997. Both actions were consolidated and considered in this appeal.

The text of the opinion is at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/disciplinary-probation.html

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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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Review of an administrative determination by courts is limited in scope

Review of an administrative determination by courts is limited in scope
Matter of Reza v NYC Department of Parks & Recreation, 2007 NY Slip Op 30246(U), Supreme Court, New York County, Judge Charles J. Tejada [Not selected for publication in the Official Reports]

Mohammad Reza sued his employer, the NYC Department of Parks and Recreation [DPR], seeking reinstatement to his position, restoration of certain annual leave credits and other relief, including appointment to a higher-grade position.

Supreme Court Justice Tejada said the scope of a court’s review of a Department’s administrative determination is limited. In reviewing an agency’s decision, the only issue to be resolved by a court is “whether a determination was made in violation of lawful procedures, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.”

In a memorandum dated November 28, 2005, Reza’s superiors directed him to refrain from performing duties outside the scope of his job description. This memorandum, said the court, was in the nature of “a clarification of his position within DPR and, as such, subject to only limited judicial review, and will not be disturbed in the absence of a showing that [it is] wholly arbitrary or without any rational basis”.

Reza, said the court, had to demonstrate that the determination is either arbitrary, capricious or afflicted with an error of law sufficient to overcome the great deference courts will typically give to an administrative agency’s decision in order to prevail. Judge Tejada decided that he failed to meet this test.

Further, as a provisional employee of the DPR, Reza did not have any entitlement to the higher-level position of Associate Project Manager, Level III, and rather then being “fired,” was ordered to perform only the duties required of him by his job description as an Associate Engineering Technician, Level II. This was well within the Department’s authority to command said the court.

Reza also claimed “retaliation” as a result of his having written to the Commissioner complaining about his superior’s “actions against him” in violation of his First Amendment Rights.
Judge Tejada said that a public employee who seeks to prevail in his or her First Amendment claim of employment retaliation must show that: (1) his speech addressed a matter of public concern, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and that adverse employment decision, so that it can be said that the plaintiffs speech was a motivating factor in the adverse employment action.

In the opinion of the court, Reza failed to meet this burden as well and denied his petition.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30246.pdf

Termination of a probationer

Termination of a probationer
Miller v Village of Wappingers Falls, App. Div., 289 A.D.2d 209

In July 1998, Louis Miller, a registered Republican active in local party matters, was appointed as the zoning administrator of the Village of Wappingers Falls by the then Republican-controlled Village Board. Miller's appointment was apparently subject to his satisfactorily completing a probationary period. In April 1999, presumably while still serving as a probationer, Miller was terminated from his position by the newly elected Democratic administration. Miller sued, contending that he was improperly terminated from his employment because of his membership in the Republican Party.

The Village's motion for summary judgment was rejected by a State Supreme Court justice. In response to the Village's appeal challenging the lower court's denial of its motion, the Appellate Division, citing Negron v Jackson, 273 AD2d 241, said that proba­tionary employee may not be fired for constitutionally impermissible reasons. Here, said the Appellate Division, Miller alleged a "constitutionally impermissible reason" for his termination -- his political affiliation.

The court rejected the Village's argument that because Miller was a probationary em­ployee it had the right to terminate his employment for any reason or for no reason.*

The Appellate Division said that "given the nature of [Miller's] allegations, it was incumbent upon the [Village] to present admissible evidence in Supreme Court showing that [Mil­ler's] political affiliations did not play a substantial part in the decision to terminate him."

In sustaining the lower court's dismissal of the Village's motion, the Appellate Division also noted that the Village "failed to even address these claims before the Supreme Court." This, said the court, meant that it did not carry its burden of proof and its motion was properly denied.

In its appeal the Village apparently also argued that Miller was "a policy-making em­ployee cloaked with considerable discretion, and thus his political affiliation was a relev­ant consideration" insofar as his dismissal was concerned. The Appellate Division said it could not consider this argument "as [the Village] improperly seeks to interject new facts and theories for the first time on appeal."

Terminations alleged to be based on political affiliation frequently are stated in terms of a violation of the individual's rights under the federal Constitution. The general rule in such cases is that a public employee may not be removed from his or her public employ­ment solely on the basis of his or her political affiliation unless there is proof that the individual's political affiliation was a critical element to his or her performance of the duties of the position.

Among the significant cases addressing this issue are Elrod v Burns, 427 US 347; Branti v Finkel, 445 US 507 and Rutan v Republican Party of Illi­nois, 497 US 62.

* Although the decision does not address Miller’s probationary obligation, "probationary employees" in fact hold permanent appointments and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.