­­­­­­­­­­­­­­­­­­­­Employee terminated after being found guilty of off-duty misconduct

­­­­­­­­­­­­­­­­­­­­Employee terminated after being found guilty of off-duty misconduct
Losada v Safir, 278 A.D.2d 59

The Appellate Division sustained the disciplinary termination of New York City police officer Fernando Losada based on a finding that Losada, while off-duty, was in a traffic-related altercation during which he "wrongfully punched and kicked the driver of the other vehicle, causing him physical injury."

Another element: Losada was found guilty of filing a criminal complaint regarding the incident "that falsely portrayed the other driver as the aggressor, which resulted in the other driver being arrested and placed in detention."

The court said that the penalty of dismissal does not shock its sense of fairness, particularly given that this was Losada's second adjudication of violent misconduct within 16 months.

Employee terminated after failing to follow the employer's policy denied unemployment insurance benefits

Employee terminated after failing to follow the employer's policy denied unemployment insurance benefits
Matter of Cruz , 288 A.D.2d 813

Angel Cruz was dismissed from his position of Director of Public Safety and Security at the City University's Queens College campus. The reason for his termination: he failed to report allegations of sexual harassment made against members of his staff to the Colle­ge's Sexual Harassment Panel. The College's policy required supervisors to report such incidents to the Panel.

The Unemployment Insurance Appeal Board subsequently rejected Cruz's claim for unemployment insurance benefits after finding that he was discharged for "disqualifying misconduct."

The Appellate Division affirmed the Board's ruling, holding that "[i]t is well settled that a claimant's knowing failure to comply with the employer's established policies and pro­cedures can constitute disqualifying misconduct, especially in cases where such failure could jeopardize the employer's best interest."

According to the decision, Cruz admitted that he had twice failed to report allegations of sexual harassment that had been filed against members of his staff. His failure to do so, said the court, prevented the College from taking prompt action to address the allegations, thereby exposing it to potential liability.

Under these circumstances, the Appellate Division said that there was "no reason to dis­turb the decision of the Board finding that [Cruz] lost his job under disqualifying circum­stances."

Former employee’s ADA retaliation claim survives the dismissal of her violation of the ADA complaint

Former employee’s ADA retaliation claim survives the dismissal of her violation of the ADA complaint
Ragusa v Malverne Union Free School Dist., USCA, 2nd Circuit, No. 08-5367-cv, June 21, 2010, [Unpublished]

Malverne Union Free School District mathematics teacher Biljana Ragusa sued the District, the school board and former school superintendent Mary Ellen Freeley, alleging that she had been the victim of unlawful discrimination because of her gender, age, and disability.

A federal district court judge granted the School Districts motion for summary judgment [Ragusa v. Malverne Union Free Sch. Dist., 582 F. Supp. 2d 326], finding that Ragusa failed to adduce sufficient evidence to permit a rational factfinder to conclude that she was disabled within the meaning of the ADA, that she had been subjected to a hostile work environment because of disability or that the district had retaliated against her because of her “engaging in ADA-protected activity.”

The Circuit Court sustained the district court’s ruling in part, stating that agreed with its finding that “Ragusa’s discrimination claim failed because of insufficient evidence that she is a ‘qualified individual’ with a ‘disability’ within the meaning of the ADA.”*

Ragusa had alleged that surgery to remove a benign brain tumor left her impaired in the “major life activities” of seeing, hearing, speaking, and walking.” The court, however, ruled that the evidence did not support a finding of “substantial limitation” and that the only medical evidence in the record consisted of a physician’s note clearing Ragusa to return to work following her surgery.

Further, said the court, Ragusa failed to raise a “jury question” as to whether the school district and its officers and employees “regarded her as disabled” because of an impairment that substantially limited a major life activity.

Although Ragusa contended that she received critical evaluations concerning her teaching performance, the Circuit Court decided that such criticisms reflected that the district considered her “ineffective” and not disabled.

As to Ragusa’s allegations concerning “retaliation,” the court ruled that although she presented a prima facie case of retaliation, the school district rebutted this claim by providing a non-retaliatory rationale” for her dismissal, thereby shifting the burden of going forward to Ragusa to show that the explanation offered by the district was pretextual.**

The Circuit Court concluded that Ragusa had sufficiently demonstrated the possibility of “pretext” with respect to her 2004-2005 teaching assignment and vacated the district court’s decision dismissing her claim of retaliation and remanded the matter to the federal district court for further consideration.

* The Circuit Court noted that Congress amended the ADA in 2008 to expand its coverage but said that it had decided the case on the version of the statute in effect “during the time period at issue, which ended with Ragusa’s termination on June 30, 2005, noting that, in general, a statute “shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication,” citing Bercerril v Pima County Assessor’s Office, 587 F3d 1162.

** Ragusa did not have to be disabled within the meaning of the ADA to pursue her retaliation claim as she demonstrated that she held a “good faith, reasonable belief that the underlying actions of the employer violated the ADA [see Sarno v Douglas Elliman-Gibbons and Ives, Inc., 183 F3d 155].

The decision has been posted on the Internet by the NYS Bar Association at:
http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9639670

NLRB holds that union commited an unfair labor practice by disciplining a member for reporting another employee's safety violation

NLRB holds that union commited an unfair labor practice by disciplining a member for reporting another employee's safety violation
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Operating Engineers, 355 NLRB No. 25 (April 19, 2010), is an interesting case. The Board ruled 3-0 that a union violated Section 8(b)(1)(A) by fining a member $2,500 for reporting another employee's safety violation. As the Board stated:

The Respondent contends that by disciplining Overtonit did not restrain or coerce him in the exercise of his rights under Section 7 of the Act because Overton acted alone and not concertedly.

The Board has consistently found Section 8(b)(1)(A) violated, however, where a union disciplines an employee for reporting a work-rule infraction by another employee, if the disciplined employee is under a duty to make such reports, notwithstanding that the disciplined employee acted alone. See Teamsters Local 439 (University of the Pacific), 324 NLRB 1096 (1997); Carpenters District Council of SanDiego (Hopeman Bros.), 272 NLRB 584 (1984); Chemical Workers Local 604 (Essex International), 233 NLRB 1239 (1977), enfd. mem. 588 F.2d 838 (7th Cir. 1978).

We find these precedents controlling.

Mitchell H. Rubinstein

Randall Comments: Although NLRB determinations are neither binding on PERB nor controlling with respect to constituting a precedent for the purposes of the Taylor Law (see Section 209-a.3, Civil Service Law), this decision is instructive as its rationale may be adopted by PERB, arbitrators and the courts under similar circumstances.

United States Supreme Court holds city’s review of employee messages on city pager was reasonable under the circumstances

United States Supreme Court holds city’s review of employee messages on city pager was reasonable under the circumstances
Source: Meyers Nave PLC. Reproduced with permission. Copyright © 2010, Meyers Nave. All rights reserved

In City of Ontario v. Quon, the U.S. Supreme Court issued a narrow ruling that the City's review of a SWAT officer's text messages sent over a City-issued pager was reasonable in the circumstances of that case, and thus did not violate the Fourth Amendment to the Constitution. But the Court avoided answering two broader questions about how courts should analyze non-investigatory, work-related searches by public employers—questions on which public entities had hoped Quon would provide guidance. The questions Quon left open are: (1) when do public employees have a “reasonable expectation of privacy” in their offices or electronic communications; and (2) if an employee has such an expectation, what is the test for whether an employer’s search was reasonable?

The City of Ontario adopted a written policy governing use of City computers, the Internet and email. The policy prohibited all but light personal use of City-owned electronic equipment, and specified that employees had no reasonable expectation of privacy or confidentiality in such use. The City then bought text pagers for its SWAT officers, and told them that the electronic communications policy applied to the pagers.

When a few SWAT officers exceeded the character limit on the City's pager plan, the lieutenant in charge of billing said he would not review their messages to separate the personal from the work-related, so long as officers who exceeded the limit paid the overage charges. Sergeant Quon interpreted this billing practice to mean that his text messages were no longer subject to the City-wide electronic communications policy. A few months later, the Police Chief ordered an audit of the text messages of officers who had consistently exceeded the character limit in the City’s pager plan, in order to determine if the limit was too low. The auditing officer redacted all messages sent during non-work hours. Sergeant Quon sued the City, contending that the review of his messages violated the Fourth Amendment.

A Fourth Amendment analysis involves two questions: (1) did the person have a reasonable expectation of privacy in the place searched; and (2) if so, was the search reasonable? In Quon, Justice Kennedy’s majority opinion approached both questions with extreme caution. The Court declined to set broad rules for when an employee’s expectations of privacy in electronic communications on employer-provided equipment will qualify as “reasonable” in the eyes of society, given the still-evolving role of electronic communications.

The Court also declined to decide what test to apply in future cases to determine if a public employee has a reasonable expectation of privacy in his or her office or electronic communications. The Court noted two possible approaches: a case-by-case evaluation to decide if an employee has a reasonable expectation of privacy under the circumstances, or a rule that the Fourth Amendment always applies to public employees’ offices or electronic communications. Quon does not choose between those approaches. Instead, the Court simply assumed for the sake of argument that Quon had a reasonable expectation of privacy in the text messages.

The Court similarly assumed that the City's review of the text messages was a ”search” subject to the Fourth Amendment, and that the principles governing the search of a public employee's office apply equally to searches in the electronic sphere. (Quon, Slip Op. at 12.)

The Court then discussed whether the search was permissible. At the outset, the Court noted a point raised by the League of California Cities and the California State Association of Counties in amicus briefs prepared by Meyers Nave. While warrantless searches are generally considered automatically unreasonable, one well-established exception to that rule is the "special needs" exception for government workplaces. (Quon, Slip Op. at 12.) That exception made a warrant unnecessary in Quon’s case, so the question was whether the search was reasonable.

The Court noted two possible approaches to whether a given search is reasonable—again, without deciding which approach to adopt for future cases. Under the first approach, a court must examine all the circumstances and ask: 1) was the search justified at its inception; and (2) were the measures adopted by the agency reasonably related to the objectives of the search and not excessively intrusive? (Quon, Slip Op. at 12.) Under the second approach, all “government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context” are always reasonable. (Id. at 9.)

Under the first approach, the Court found the search in Quon justified at its inception because the City had a legitimate interest in ensuring that the character limit on the City’s pager plan was appropriate. (Quon, Slip Op. at 13.)

The Court also found the scope of the search reasonable because the Department limited the search to two months’ worth of messages, and redacted all off-duty messages. (Ibid.) The Court added that, although it was assuming for argument’s sake that Quon had some reasonable expectation of privacy in the text messages, Quon could not reasonably have assumed that his messages could never be searched. (Ibid.) A reasonable law enforcement employee would realize that the text messages might be audited to determine whether the pager was being appropriately used, or to assess the SWAT team's performance in a particular emergency. (Id. at 14.) The Court then readily found that, for the same reasons, the search was reasonable under the second, “searches regarded as reasonable and normal for private employers” approach. Thus, it did not decide which of the two approaches courts must use in the future.

Justice Scalia filed a concurring opinion contending that the majority opinion improperly gave lower courts a “heavy-handed hint” about how to address the “reasonable expectation of privacy” issue. (Quon, Slip Op. (Scalia, J., concurring), at 2.) The Quon majority spent three pages discussing whether Quon’s expectation of privacy was reasonable in the circumstances—before ultimately saying that it was not going to decide that question, or even decide whether that question is relevant. Justice Scalia warned that lower courts will read this as a hint that, in future cases, they should follow the same case-by-case approach. (Ibid.)

Basically, Quon leaves governmental agencies with no clear standards to use in applying electronic communication policies. As Justice Scalia suggests, Quon will mean that, in each future case, public entities will very likely have to argue whether a given employee had a reasonable expectation of privacy in a particular office or electronic communication medium.

At most, governmental agencies can now be assured that: (1) a search warrant is not required for non-investigatory, work-related searches of electronic communications sent via publicly owned equipment, based on the "special needs" exception to the warrant requirement; and (2) if they take reasonable precautions to limit the intrusiveness and scope of a search to what is necessary to achieve its purpose, courts will likely find the search reasonable. However, the uncertainty and risk of litigation in this area mean that public entities should proceed with caution and consult legal counsel if possible before searching employees’ workspaces or electronic communications.

For more information on the Quon opinion or related legal issues regarding public employers and employees, contact Joseph Quinn or Nancy Thorington at 800.464.3559.