Comptroller's audit finds former Town Supervisor's spouse misappropriated $378,000 of the Town’s funds by writing checks to the Supervisor and herself

Comptroller's audit finds former Town Supervisor's spouse misappropriated $378,000 of the Town’s funds by writing checks to the Supervisor and herself
Source: Office of the State Comptroller

According to an audit released by State Comptroller Thomas P. DiNapoli, the spouse of the former supervisor of the Town of Fairfield admitted to misappropriating $378,000 in town funds by using her husband's signature stamp on 347 checks that she made payable to herself and her husband.

The supervisor, who has since resigned, had hired his wife as deputy supervisor.

Following fieldwork by DiNapoli's auditors, the former supervisor's wife was indicted on 350 counts related to the lost money.

Auditors tracked the town's bank activity from 2004 to 2009.

The Comptroller’s report is posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/towns/2010/fairfield.pdf

Uninterrupted Civil Service Law §72 absence for one year or more permits termination of employee pursuant to §73 of the Civil Service Law

Uninterrupted Civil Service Law §72 absence for one year or more permits termination of employee pursuant to §73 of the Civil Service Law
NYC Dept. of Corrections v Anonymous, OATH Index #1472/10

OATH Administrative Law Judge Alessandra Zorgniotti recommended that the New York City Department of Correction terminate a correction officer absent on Civil Service Law Section 72 leave from employment pursuant to Section 73 of the Civil Service Law after the officer has been absent from duty continuously for more than one year due to a non work-related disability.

Zorgniotti credited the opinion of the Department's doctor that the officer was not currently fit to return to work because “his medical condition was active and that the stresses of returning to work in the jail could trigger another episode with serious consequences.”

Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in the Workers’ Compensation Law, while Section 71 of the Civil Service Law provides for a leave of absence when the employee is absent due to an occupational injury or disease.

There is, however, one significant difference between Section 71 leave and Section 72 leave. The one-year leave period* allowed under Section 71 is determined on the basis of the individual’s cumulative absence while the minimum leave period under Section 72 is based on the employee’s ininterrupted absence for one year.

In other words, under Section 72, the employee may be terminated pursuant to Section 73 of the Civil Service Law if he or she has been absent from work for an uninterrupted period of at least one year.

In contrast, an employee absent on Section 71 leave may be terminate after he or she has been absent for a cumulative total of at least one year, even if such absences are intermittent whereby the employee returns to work and then goes on Section 71 leave again because of the same injury or disease.

It should be remembered that under both Section 71 and Section 73, separating an employee from service after the employee has been absent for the minimum period mandated for such leave is discretionary and the appointing authority is not required to terminate the employee.

Further, the individual separated from the position pursuant to either Section 71 or Section 73, as the case may be, is eligible for reinstatement to his or her former position is he or she applies for such reinstatement within one year of termination of the disability. If a suitable position is not available, the individual’s name is to be placed on a preferred list and he or she may be reinstated to a suitable position in a lower grade while on such a preferred list if available.

* In the event is the employee’s absence resulted from an assault sustained in the course of his or her employment, he or she is entitled to a leave of absence for at least two years unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1472.pdf

Federal Court in Michigan holds plaintiff must exhaust local administrative review despite belief that hearing officer was selected by city attorney

Federal Court in Michigan holds plaintiff must exhaust local administrative review despite belief that hearing officer was selected by city attorney
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/

Just because you think an administrative appeal would be useless doesn't mean that the courts will think it is useless. Dean Patty Salkin (Albany Law School) on her Law of the Land blog reports on a Federal District Court case that suggests one must be very, very careful before deciding that available administrative remedies would be useless and charging into the courts.

Dean Salkin’s report is posted on the Internet at: http://lawoftheland.wordpress.com/2010/07/29/federal-dist-court-in-michigan-holds-plaintiff-must-exhaust-local-administrative-review-despite-belief-that-hearing-officer-was-selected-by-city-attorney/

The general rule requires those objecting to administrative action to exhaust their administrative remedies before asking for judicial review.

There is an exception if further administrative steps would be futile and irreparable harm will result from the delay (as with a preliminary injunction).

Fear of bias, however well founded, does not mean that the agency will no-way do the right thing. It could have an attack of logic, or common sense, or honesty, or other insanity. Most agency decision makers, no matter how political, try to follow the rules. Even when the appellant is a whining publicity hound who contributed to the other party.

Edward M. “Ted” McClure

FMLA leave request does not insulate employee from unrelated disciplinary action

FMLA leave request does not insulate employee from unrelated disciplinary action
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.

Howard Gipson was employed as a plaint maintenance worker for Vought Aircraft Industries. He also served as the local union president.

In late 2004, Gibson underwent triple-bypass heart surgery. He was granted FMLA leave for the surgery. In October 2005, Gipson was removed as the local union president. Incident to that removal, his successor removed Gipson's personal effects from the union office and placed them in an adjacent lobby with instructions for Gipson to collect them. He did not.

Gipson's shift supervisor subsequently asked Gipson to remove his effects from the lobby. Gipson did nothing. His supervisor asked him a third time to remove his effects. Gipson replied that it was a union-related matter and that he would not comply without a written directive. His supervisor next gave him a verbal directive to remove his effects, and warned Gipson that failure to do so could result in discipline up to and including discharge. Gipson walked away. He went and saw the company nurse. She told him his blood pressure was slightly elevated. Gipson returned to his station, and told his supervisor he wanted to go home because he was in pain and needed his medicine. Gipson was asked one final time by the HR manager to retrieve his effects. Gipson declined stating that he had a very bad headache.

The company terminated Gipson on the spot for insubordination. Gipson sued alleging that his termination was in retaliation for exercising his FMLA rights. The Sixth Circuit disagreed.

The Court found that there was no a casual connection between is exercise of FMLA rights and his termination. The court opined: "As we have stated, an employee may not insulate himself from a pending dismissal by opportunistically invoking the FMLA."

Here, Gipson, the court found, could not demonstrate that his employer would not have dismissed him regardless of his alleged request for FMLA leave. The Court noted Gipson's admission that he flatly disobeyed the direct order of his supervisors, which "is indisputably grounds for termination."

The Court also cited the finding of the arbitrator that, in violation of a known work rule, Gipson failed to comply with his supervisor's three requests to move his effects, all of which were issued before Gipson had voiced his medical concerns to anyone. While he was not terminated until after Gipson asked for a medical pass to leave for the day, he had been warned prior to his request that failure to obey a direct order to move his effects would result in discipline, including discharge.

According to the Court, "the wheels of termination had already been put into motion before Gipson requested leave." A reasonable jury "could not conclude that it was Gipson's request for a medical pass, rather than Gipson's continuing insubordination, that provoked his firing."

Mr. Bosland Comments: Invoking FMLA leave does not protect an employee from unrelated discipline that is already in the pipeline. Note that the court considered the discipline to be in the pipeline even though formal discipline had not been proposed or issued. Rather, the court focused on whether the discipline would have occurred regardless of the employee's request for FMLA leave. In practice, the employer can demonstrate that it would have issued discipline notwithstanding the exercise of FMLA rights based on conduct that pre-dated the employee's invoking the need for FMLA leave.

Of course, by opportunistically invoking the FMLA, Gipson forced his employer to to go through the great time and expense of litigating the case before both an arbitrator and through the courts. Many employers would look to settle such a case. While that might not guarantee that Gipson would return to his job, a settlement to avoid the substantial expense of litigation might have allowed Gipson to resign with a neutral recommendation, and with a few dollars in his pocket.

The decision is posted on the Internet at: http://www.ca6.uscourts.gov/opinions.pdf/10a0420n-06.pdf

Court sustains Human Rights’ finding that the reasons advanced by employer for terminating employee was pretext for unlawful discrimination

Court sustains Human Rights’ finding that the reasons advanced by employer for terminating employee was pretext for unlawful discrimination
New York State Office of Mental Health v New York State Division of Human Rights, 2010 NY Slip Op 06268, Decided on July 29, 2010, Appellate Division, Third Department

Bisi Asimolowo was employed by the Office of Mental Health as a pharmacy intern in 1992 and Asimolowo understood that he was expected to take and pass the licensing examination to become a pharmacist.

Although Asimolowo failed to become a licensed pharmacist, Mental Health periodically obtained authorization from the Department of Civil Service to continue employing him as a pharmacy intern.

The decision reports that in 2003 Asimolowo was unable to work for approximately 27 days due to undergoing treatment for cancer.

Asimolowo subsequently submitted a doctor's note stating that he was “medically disabled due to an ankle and knee injury.” On that same day Mental Health notified him that his employment would end, “ostensibly because the Department [of Civil Service] had declined to authorize his continued employment.”

Asimolowo filed a verified complaint with State Division of Human Rights alleging that among other things, disability discrimination. Ultimately a SDHR Administrative Law Judge issued a recommended order finding that although Mental Health had advanced an otherwise legitimate, nondiscrimatory reason for terminating Asimolowo's employment, it was, in fact, a pretext and Asimolowo had been discharged because of his disability.

The Commissioner of Human Rights adopted the ALJ's findings but reduced the proposed award of damages from $50,000 to $30,000.

Noting that “A determination of SDHR is entitled to considerable deference due to its expertise in assessing discrimination claims, and we must uphold that determination if it is supported by substantial evidence,” the Appellate Division said that “The parties do not dispute that Asimolowo suffered from a disability but was capable of working as a pharmacy intern or that [Mental Health] provided a legitimate, nondiscrimatory reason to support his termination.

Accordingly, said the court, it need only determine whether substantial evidence supports SDHR's finding that Asimolowo demonstrated that Mental Health's nondiscrimatory reason was, in fact, a pretext for unlawful discrimination.

Recognizing that Mental Health “undoubtedly had legitimate concerns about Asimolowo's employment status given his failure to become a licensed pharmacist,” the Appellate Division said that “serious efforts to remove him only began after he used a substantial quantity of sick leave to address medical issues.”

The court also commented that “discussions of an unknown nature” occurred between Mental Health officials and the Department of Civil Service and that Asimolowo was not advised of his termination until after his supervisor was notified of his knee and ankle injury, “despite [Mental Health’s] purported awareness of the pending termination for months beforehand.”

The court concluded that although the evidence in the record could support a different result, substantial evidence supported SDHR's determination that “relying upon Asimolowo's dubious civil service status to terminate him was a pretext and that [Mental Health] intended, by the ‘devious and subtle means’ often employed, to discriminate.”

The Division's award of damages for Asimolowo's emotional distress was also affirmed. Such injuries, said the court, may be proven by a complainant's own testimony, even in the absence of medical or other treatment.

The Division had found that Asimolowo was continuing to feel "enormous mental anguish and humiliation" at the time of the hearing, over four years later, and that he was "deeply hurt" that his children had lost respect for him as a result of losing his job.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06268.htm