The American Recovery and Reinvestment Act of 2009 (ARRA), as amended

The American Recovery and Reinvestment Act of 2009 (ARRA), as amended
Source: US Department of Labor, Employee Benefits Security Administration

The Act, as amended, provides for premium reductions for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA. Eligible individuals pay only 35 percent of their COBRA premiums and the remaining 65 percent is reimbursed to the coverage provider through a tax credit.

To qualify, individuals must experience a COBRA qualifying event that is the involuntary termination of a covered employee's employment.

The involuntary termination must generally occur during the period that began September 1, 2008 and ends on May 31, 2010.

An involuntary termination of employment that occurs on or after March 2, 2010 but by May 31, 2010 and follows a qualifying event that was a reduction of hours that occurred at any time from September 1, 2008 through May 31, 2010 is also a qualifying event for purposes of ARRA.

The premium reduction applies to periods of health coverage that began on or after February 17, 2009 and lasts for up to 15 months. See Continuing Extension Act of 2010.

Section 3020-a disciplinary appeals

Section 3020-a disciplinary appeals
Austin v NYC Board of Education, 280 A.D.2d 365

The Austin decision by the Appellate Division, First Department, sets out the standards followed by the courts in considering appeals from Section 3020-a disciplinary determinations. Typically these standards are considered in connection with motions by the parties to confirm or vacate the hearing officer's decision.

The ruling also addresses an issue that is frequently of concern in such disciplinary proceedings: the acceptance and consideration of hearsay evidence by the hearing officer.

Wallace Austin was served with disciplinary charges pursuant to Section 3020-a of the Education Law. He was found guilty of certain of the charges and specifications. A State Supreme Court justice overturned the hearing officer's ruling on the basis that it was not supported by substantial evidence in the record. The Appellate Division, however, said that the lower court had applied an incorrect standard in reviewing Austin's petition and vacated the lower court's determination.

According to the Appellate Division's decision, the lower court had applied the standard applicable in reviewing challenges to administrative determinations brought pursuant to Article 78 of the Civil Practice Law and Rules [CPLR].

The Article 78 standard for review: Was the administrative determination supported by substantial evidence in the record.

In contrast, the standard of review of Section 3020-a disciplinary decisions is controlled by CPLR Article 75, not the standards to be met in resolving a challenge brought pursuant to CPLR Article 78.

Essentially a CPLR Article 75 proceeding concerns challenges to arbitration awards while an Article 78 proceeding tests whether an administrative determination was arbitrary or capricious.
The Appellate Division pointed out that Section 3020-a(5) specifically requires that a court's review of a Section 3020-a hearing officer's decision in accordance with the standard spelled out in CPLR 7511.

The sole grounds set out in Article 75 for overturning such a determination:

1. Proof of corruption, fraud or misconduct in procuring an award;

2. The partiality of the arbitrator;

3. The arbitrator exceeded his or her authority; or

4. The arbitrator failed to follow the procedures set out in Article 75.

In addition to these statutory standards justifying the vacating of the arbitration award, the courts have declared arbitration awards that violate a strong public policy null and void.

The Appellate Division said that since Austin failed to show any misconduct, bias, excess of power or procedural defects on the part of the hearing officer, [or any violation of a strong public policy] his petition must be dismissed.

In addition, the court observed that the rules governing Section 3020-a disciplinary hearing procedures do not require compliance with technical rules of evidence. Accordingly, a hearing officer may accept and consider hearsay evidence in such an administrative proceeding.

The Appellate Division also commented that "the hearing officer credited the testimony of the Principal and Assistant Principal and found [Austin's] testimony to be inconsistent and incredible."

There are other critical elements to be remembered in connection with appealing a Section 3020-a disciplinary determination.

For example, in addition to the limited grounds for vacating the arbitration award listed in Section 7511, Section 3020-a sets a very short statute of limitations for filing a petition to overturn or modify the award as well as setting other limitations in appealing such decisions.

Section 3020-a.5 provides that:

1. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to CPLR Section 7511.

2. The court’s review shall be limited to the grounds set forth in Article 75. Further, the hearing panel’s determination shall be deemed to be final for the purpose of such proceeding.3. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

Keeping in mind the 10-day limitation for perfecting an appeal from a Section 3020-a decision, it should be remembered that the basic rules concerning effective service of a final determination for the purposes of filing a timely appeal are as follows:

1. If the individual is not represented by an attorney or by a union official, the individual must be served to begin the statute of limitations running.

2. If an employee is represented by an attorney, the administrative body may send a copy of the determination to the employee but it must serve the attorney to begin the running of the statute of limitations.

3. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.

State law claims survive ADA claim dismissal

State law claims survive ADA claim dismissal
Giordano v City of New York, CA2, 274 F.3d 740

The Giordano case illustrates the fact that sometimes it is possible to maintain a discrimination lawsuit under state law notwithstanding the fact that the federal courts have dismissed similar claims alleging violations of federal law.

In such situations the state courts should make the determination based on state law and not consider the action taken by the federal courts with respect to the issues presented for adjudication.

In Giordano, a federal district court justice ruled that the fact that a police officer may be unable to work as a full-time patrol officer for one police department does not mean that he or she is impaired with respect to working in law enforcement for another police agency or in the private sector and thus is not disabled within the meaning of the ADA.

David Giordano sued the New York City Police Department under both federal and New York State human rights laws. He alleged that the Department terminated him in viola­tion of the ADA and New York State's Human Rights Law when it mistakenly "regard[ed] him as disabled" because of his took the drug Coumadin, an anticoagulant, daily and terminated his employment.

Giordano also contended that in discharging him without giving him a personal physical examination and by continuing to employ another full-duty police officer, Thomas Rowe, who also takes Coumadin daily, the Department violated his constitutional rights under the Due Process and the Equal Protection Clauses of the Fourteenth Amendment.

Giordano appealed the federal district court's granting the Department's motion for summary judgment, dismissing all of his claims that the Department had violated both federal and state discrimination law provisions.

The Circuit Court sustained the lower court's dismissal of Giordano's complaint with respect to federal law but ruled that "the district court erred by dismissing on the merits [Giordano's] pendent state law claims under the New York State Executive Law and the New York City Administrative Code."

Reversing the district court's ruling in part, the Circuit Court decided that "these claims would be more appropriately adjudicated in state court" and remanded the case back to the district court with its directions that the district court dismiss the remaining claims without prejudice to their being brought in an appropriate state forum. The basis for the court's dismissal of Giordano's ADA and other federal claims:

1. Giordano failed to offer evidence from which a reasonable juror could conclude that the Department "regarded him as disabled" within the meaning of the ADA; and

2. There was nothing in the record to suggest that the alleged disparate treatment of Giorda­no and Officer Rowe resulted from any illicit motivation of the Department.

The Supervising Chief Surgeon of Department recommended that Giordano "not be permitted to perform any patrol duties and be considered for disability retirement" based on the views of a number of physicians, including two department vascular surgeons, because the anticoagulation needed for Giordano's prosthetic aortic valve could result in catastrophic bleeding from even minor injuries.

Why did Giordano's state law claims survive? According to the ruling, New York's state and municipal laws define "disability" in broader terms than does the ADA. In contrast to the ADA, New York State's Human Rights Law did not require that Giordano show that his disability "substantially limits a major life activity."

This means, said the court, that a person may be disabled within the meanings of New York's state and municipal laws even if his or her impairment does not substantially limit a major life activity.

As a procedural matter, the Circuit Court noted that the statute governing supplemental jurisdiction, [28 USC 1367] did not require dismissal of pendent state-law claims such as Giordano's where all of the federal claims have been dismissed. However, said the court, "if it appears that the state issues substantially predominate, whether in terms of proof, the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals." This solution was determined to be appropriate in Giordano's situation.

Why? The Circuit Court decided that "the state-law claims should be dismissed so that state courts can, if so called upon, decide for themselves whatever questions of state law this case may present" and "we do not think that those courts should be bound, or think themselves bound, by principles of collateral estoppel or otherwise, to any findings or conclusions reached by the district court in its discussion of whether, as a matter of law, Giordano was qualified to perform the essential functions of his job."

Probationary termination

Probationary termination
Higgins v La Paglia, 281 A.D.2d 679, appeal dismissed, 96 N.Y.2d 854

The Ulster County Sheriff Michael L. Paglia terminated correction officer Bradley Higgins at the end of his one-year probationary period. Higgins filed a grievance and initiated an Article 78 action seeking to overturn the Sheriff's decision.

Higgins claimed that he held tenure and thus was entitled to "notice and hearing" before he could be terminated. He cited a statement in the Ulster County Employees' Handbook that defined the probationary term as being a minimum of eight weeks and a maximum of 26 weeks.

The court rejected this argument, pointing out that the statement in the handbook contravenes the Ulster County Civil Service Rules and Regulations dealing with probation.

Finding that Higgins was a probationary employee at the time of his termination, the court said that he could be dismissed without a hearing unless he proffered sufficient evidence to create a question of fact as to whether his discharge was unrelated to work performance, motivated by a constitutionally impermissible purpose or made in bad faith.

Appling the correct test in resolving a challenge to an administrative determination

Appling the correct test in resolving a challenge to an administrative determination
Matter of Heather Duncan v Klein, 38 A.D.3d 380

Heather Duncan held certification as a school bus escort and worked for the New York City Office of Pupil Transportation. The Office alleged that Duncan hit a student with her umbrella and recommended that her school bus escort certification be revoked.

A “disciplinary conference” was held pursuant to the Chancellor's Regulation C-100. It was determined that there was a “pulling/pushing match” over the umbrella and that such conduct was “unprofessional and unsafe.” The penalty recommended: “a suspension for the time already served with no back pay.”

Rather than suspend Duncan, the Chancellor elected to impose the penalty recommended by the Office of Pupil Transportation and revoked Duncan’s certification. Duncan sued in an effort to have her certification restored to her.

The test the Appellate Division said applied in this case was whether the Chancellor’s action “was arbitrary and capricious” in contrast to applying the “substantial evidence” test to the Chancellor’s determination.

As the court explained, the disciplinary conference was not conducted pursuant to the Constitution or any statute. Therefore, it was properly reviewed under the arbitrary and capricious standard rather than substantial evidence standard. Applying that “arbitrary and capricious” standard, the court said that the record provides “a rational basis for disbelieving Duncan’s version of the facts and finding, instead, that she actively hit the student and was not merely defending herself.”

The court concluded that the penalty of revocation her certification did not shock one’s conscience and dismissed Duncan’s appeal.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2007/2007_02469.htm