Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situation

Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situation
Woodward v GOER, 279 A.D.2d 725

The Governor's Office of Employee Relations [GOER] denied the out-of-title work grievance filed by a Grade 22 Senior Correction Counselor, Larry Woodward.According to the decision, Woodward, whose duties essentially involved "the social, educational and vocational rehabilitation of prisoners," was assigned to conduct Tier III disciplinary hearings involving inmates.

One of 10 civilian supervisory-level employees assigned such duties, Woodward conducted an average of 61 tier III disciplinary hearings per year between May 1, 1994 and June 1, 1999.
In September 1994 Longwood asked that either his name be removed from the list of individuals assigned to conduct Tier III hearings or that he be compensated for performing the tasks of a Hearing Officer, a grade 25 position.

When GOER denied his grievance, relying on an advisory opinion by the State Department of Civil Service's Director of Classification and Compensation indicating that "the grieved assignment [did] not constitute out-of-title work * * * [as] [t]he limited assignment of [petitioner ] to serve as a disciplinary hearing officer [was] a logical and proper extension of the duties of a Senior Correction Counselor and other civilians at this organizational level of correctional facility staffing". Accordingly, GOER denied Woodward's grievance.

Woodward's union, the Public Employees Federation, filed an Article 78 action seeking to annul GOER's denial of the out-of-title grievance and to obtain a determination that Woodward is entitled to back pay at the grade 25 level.

A State Supreme Court judge annulled GOER's determination and remitted this matter to it for a "redetermination and appropriate award of back pay." GOER appealed. The Appellate Division affirmed the lower court's determination, ruling that out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law Section 61(2).
Section 61(2) essentially provides that:

"[n]o person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder".

The court, however, pointed out that "not all additional duties constitute out-of-title work, and the mere fact that there may be some overlap between two particular positions does not mandate a finding that a petitioner is being compelled to perform out-of-title work."

The Appellate Division said that test to be used in considering complaints involving alleged out-of-title work is whether "the record as a whole provides a rational basis for the determination that the duties [the employee] performed were 'substantially similar' to those detailed in his job description and that he was not performing out-of-title work."

In this instance the court concluded that the Department of Civil Service specifications for Senior Correction Counselor, did not encompass "presiding over quasi-judicial adversarial proceedings, hearing and receiving evidence, making appropriate findings of fact and conclusions of law and imposing punishment."

In the words of the court, such duties "simply cannot be said to be reasonably related to or viewed as a logical extension of [Longwood's] duties as a Senior Correction Counselor.

Accordingly, Supreme Court appropriately concluded that respondents' determination denying Woodward's out-of-title grievance lacked a rational basis and was wholly arbitrary and capricious. Significantly, the Appellate Division noted that the Supreme Court did refer to a regulation, 7 NYCRR 253.1, which permits a facility superintendent to designate employees to conduct such disciplinary hearings.

However, said the court, "such designation is valid only to the extent that it does not violate Civil Service Law Section 61(2)." In other words, a regulation may not be relied to support a decision if it is inconsistent with the specific mandates of a statute.

Ultimately back pay was awarded to Woodward for his out-of-title work in conducting tier III hearings.

An employee placed on Section 72 leave for ordinary disability subsequently terminated for "abandonment of position"

An employee placed on Section 72 leave for ordinary disability subsequently terminated for "abandonment of position"
Fronczak v NYS Dept. of Correctional Services, CA2, LEXIS 2167

Section 72 of the Civil Service Law -- leave for ordinary disability -- permits an appointing authority to place on employee on involuntary leave without pay if he or she is found unable to perform the duties of his or her position as a result of an illness or a disability that is not an occupational injury or disease as defined in the Workers' Compensation Law.*

The Fronczak case involved the placement of a state worker on an involuntary leave pursuant to Section 72 of the Civil Service Law.

Daniel T. Fronczak sued the New York State Department of Correctional Services [DOCS], claiming that this action violated Americans with Disabilities Act, 42 USC Sections 12112-12117 and subjected him to unlawful retaliatory adverse employment actions in violation of 42 USC 1983.

According to the decision by the U.S. Circuit Court of Appeals, Fronczak was a correctional officer employed by DOCS at its Wyoming facility.

Critical of the facility's handling of hazardous waste materials, he began "exhibiting both bizarre and threatening behavior."

In 1993 DOCS asked Fronczak to undergo a psychiatric examination to determine his ability to perform the duties of his job.

Dr. Jeffrey Bernstein, employed by the New York Department of Civil Service's Employee Health Service, examined Fronczak and determined that Fronczak was:"in need of psychiatric care ... was a risk for not being able to manage the inmates, possibly even losing control, further control of his emotions and his temper, and having difficulty working with co-workers ... [t]hat he was unable from a psychiatric perspective to continue his duties as a corrections officer."

Based on this evaluation, in 1993 Fronczak was placed on an involuntary leave of absence. He unsuccessfully appealed the determination to the Civil Service Commission.

Section 72.2 provides that an employee placed on leave pursuant to Section 72.1 may, within one year after the date of commencement of such leave of absence, or thereafter at any time until his or her employment status is terminated, make application to the civil service department or municipal commission having jurisdiction over the position from which such employee is on leave, for a medical examination by a medical officer selected for that purpose by such department or commission.

In 1996, after a further evaluation, Fronczak was found fit to perform the duties of a corrections officer and, in accordance with DOCS policy, was required to undergo seven weeks of retraining prior to resuming active employment as a corrections officer.

During this training period Fronczak had "an altercation with an instructor" and ultimately "gathered his belongings, and departed" the facility.

Fronczak was sent a letter warning him that as provided under the terms of the collective bargaining agreement then in place, his absence for ten days would be considered "a constructive resignation."

When Fronczak failed to return with the ten-day period, DOCS notified him by mail that his absence had been deemed a constructive resignation and that his employment with DOCS was terminated.

After losing his administrative appeals before the State Civil Service Commission and exhausting his federal administrative remedies through the Equal Employment Opportunity Commission (EEOC), Fronczak filed a lawsuit in federal district court.

As set out in the Circuit Court's opinion:

"A liberal reading of [Fronczak's] complaint reveals the following alleged causes of action: (1) by placing Fronczak on involuntary leave in 1993 and terminating him in 1996, DOCS retaliated against Fronczak's exercise of his First Amendment rights, in violation of 42 USC Section 1983, for his complaints concerning its waste management; (2) the same 1993 involuntary leave and 1996 termination resulted from discrimination on the basis of a perceived mental disability in violation of the ADA."**

A federal magistrate judge dismissed Fronczak's petition on the grounds that he failed to establish a prima facie case that he had been discharged either as the result of discrimination on the basis of a perceived disability or in retaliation for his filing waste management complaints.

Instead, the magistrate concluded, "[t]he undisputed record reflects that ... [Fronczak] was discharged because he failed to show up for work." The Circuit Court sustained the magistrate's determination.

However, the Circuit Court went further. The court said that:

"assuming arguendo that Fronczak has presented a prima facie case of discrimination on the basis of a perceived mental disability in 1993, DOCS has come forward with a legitimate nondiscriminatory explanation for placing him on involuntary leave at that time, namely that he was not capable of performing the essential job duties of a corrections officer."

In addition, said the court, Fronczak did not present any evidence indicating that DOCS' proffered explanation was a pretext for discrimination.

The court's conclusion: After considering "all of Fronczak's claims and finding them without merit," the judgment of the district court is affirmed.

* Section 71 of the Civil Service Law provides for leaves of absences in connection with an "occupational injury or disease" within the meaning of the Workers' Compensation Law

** The US Supreme Court ruled that the states enjoy Eleventh Amendment immunity from lawsuit in federal court alleging violations of the Americans With Disabilities Act [Garrett v. University of Alabama, 193 F.3d 1214].

­­­­­­­­­­­­­­­­­­­­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