The status of the individual performing services for a public employer may be critical in determining liability

The status of the individual performing services for a public employer may be critical in determining liability
Czark v Hauppauge UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Czark case illustrates that the status of the individual performing services for a public employer may be critical in determining whether or not the public employer will be held liable for an injury to an individual.

A Hauppauge Union Free School District student complained that in the course of a school sports physical examination the examining physician “touched and fondled her breast.” The student and her mother sued the district and the physician allegedly involved. Hauppauge asked State Supreme Court Justice Floyd to dismiss it from the law suit, contending that (a) the physician alleged to have touched the student was “an independent contractor and not an employee of the school district” and that (b) the district “had no knowledge of any prior sexual propensities” of the physician.

Justice Floyd said that a school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee’s duties. Here, however, Justice Floyd ruled that the record clearly establishes an independent contractor status between the school district and the physician.

The defendant physician was the associate of the physician that was under contract with the district to provide medical services to the school district and was paid a scheduled fee for services performed. Also noted was the fact that the contracting physician was not named as a party to the action.

Accordingly, Justice Floyd dismissed the claims against the District for negligent supervision, negligent hiring and vicarious liability because, he said, “[t]here are no terms and conditions contained within this contract that would permit this Court to conclude that an employer/employee relationship had been established.”

The Court, however, refused to dismiss the suit filed against the physician by the student for the alleged battery and by her parent for the alleged “loss of services.”

In a law enforcement environment, safety interests trump sincere religious beliefs

In a law enforcement environment, safety interests trump sincere religious beliefs
Equal Employment Opportunity Commission v The GEO Group, Inc., USCA 3rd Circuit, No. 09-3093

GEO, a private company, contracted to run the George W. Hill Correctional Facility, the prison for Delaware County, Pennsylvania.

In April 2005, the Hill Facility instituted a dress policy that provided that “[n]o hats or caps will be permitted to be worn in the facility unless issued with the uniform.” The new policy also stated that “[s]carves and hooded jackets or sweatshirts will not be permitted past the Front Security Desk.”

These directives were interpreted to prohibit the wearing of a khimar, an “Islamic religious head scarf, designed to cover the hair, forehead, sides of the neck, shoulders, and chest,” which was until then worn by some female Muslim employees inside of the Hill Facility.

EEOC filed a lawsuit on behalf of a class of Muslim women employees against GEO, contending that GEO violated Title VII's prohibitions on religious discrimination when it failed to accommodate the Muslim female employees by providing them an exception to the prison's dress policy that prevented them from wearing khimars at work.

The Circuit Court affirmed the federal district court’s decision granting GEO's motion for summary judgment dismissing EEOC’s complaint.

The district court had cited Webb v. City of Philadelphia, 562 F.3d 256,* in support of its ruling.

In Webb the US Circuit Court of Appeals, 3rd Circuit, held that regardless of the sincere religious beliefs of certain police officer of the need to wear a khimar, their belief had to yield to the Philadelphia's police department's policy prohibiting the wearing of a khimar while on duty because "safety is undoubtedly an interest of the greatest importance."

* The Webb decision is posted on the Internet at http://www.ca3.uscourts.gov/opinarch/073081p.pdf

The GEO decision is posted on the Internet at: http://www.ca3.uscourts.gov/opinarch/093093p.pdf
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Determining the disciplinary penalty to be imposed following conviction of a crime underlying the disciplinary action taken against the employee

Determining the disciplinary penalty to be imposed following conviction of a crime underlying the disciplinary action taken against the employee
Garippa v New York City Bd. of Ed., NYS Supreme Court, [Not selected for publication in the Official Reports]

A Section 3020-a arbitrator found Michael Garippa, a New York City school teacher, guilty of conduct unbecoming the profession and authorized his termination.

Garippa, a tenured English teacher at Franklin D. Roosevelt High School in Brooklyn, was arrested by federal authorities and charged with conspiracy to distribute steroids.

Garippa subsequently pleaded guilty to one count of Conspiracy to Distribute a Controlled Substance and was sentenced to serve three years of probation and six months of home confinement; to perform 200 hours of community service by coaching children’s sports teams; and to continue drug counseling.

Section 3020-a Hearing Officer Jacquelin F. Drucker concluded that “... the question before this hearing officer relates not to guilt or innocence but to the proper level of discipline for the conduct at issue.”*

Drucker decided that Board was authorized to remove Garippa as a teacher because of two factors:

1. Newspaper reports identifying Garippa, his occupation and his employer, allegedly caused the board to suffer “unfortunate, unpleasant publicity”; and

2. The fact that “Respondent’s initial contact with the purchaser was made at a school function.”

Garippa appealed to the state Supreme Court and Justice H. Freedman granted Garippa’s petition and vacated the hearing officer’s decision. He then remanded the case to the Board for reconsideration.

Justice Freedman observed that the hearing officer did not suggest that Garippa could be trusted to work with children. The offense occurred off-duty and off-premises. The Court concluded that the hearing officer’s decision “was based on an assumption that Garippa’s guilty plea automatically constituted guilt of conduct unbecoming the profession,” rather than on an express finding to that effect.

This was improper, Justice Freedman said. Section 3020-a guarantees that the employee shall have full and fair disclosure of the nature of the case and evidence against him.

According to Justice Freedman, Garippa was neither told beforehand that the articles or the “bad publicity” would be the basis for either a finding of guilt or a determination of penalty nor was he ever shown copies of the articles, which were the subject of his cross-examination.

Since the newspaper articles were not submitted into evidence, Justice Freedman said that they were not part of the reviewable record before the court. In addition, Justice Freedman pointed out that “it is improper for an administrative agency [or an arbitrator] to base a decision of an adjudicatory nature upon evidence outside of the record.”

The court said the school board raised a legitimate issue regarding publicity because it has a right to protect the reputation of the institution. But since Garippa was denied an opportunity to address and rebut this allegation, the arbitrator’s determination was made without prior notice and lacked evidentiary basis.

The lesson here appears to be that an appointing authority cannot assume that a conviction of a crime will be sufficient to find an individual guilty of embarrassing it and justify its imposition of a penalty. Rather, the appointing authority must prove each and every element of it allegations, including those factors underlying the reason for bringing the disciplinary action in the first instance.

* N.B. In Kelly v. Levin, 440 NY2d 424, the Court of Appeals ruled that is a reversable error for an administrative disciplinary body to acquit an employee in a disciplinary action if the individual had earlier been found guilty of a criminal act involving the same allegations.

The full opinion is available at:
http://nypublicpersonnellawarchives.blogspot.com/
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Dismissal because of threatening behavior towards coworker held disqualifying misconduct for the purposes of receiving unemployment insurance benefits

Dismissal because of threatening behavior towards coworker held disqualifying misconduct for the purposes of receiving unemployment insurance benefits
Messado v City of New York, 2010 NY Slip Op 06343, Decided on August 5, 2010, Appellate Division, Third Department

Bernard R. Messado was employed as a clerical worker by a New York City agency. Believing that his coworkers were speaking about him behind his back in a derogatory fashion and also calling him names, Messado confronted one of his coworkers in a threatening manner and used profanity while the coworker was having lunch at a nearby restaurant with two other employees of the agency.

The incident was reported to a supervisor and as Messado had previously been warned not to engage in this type of behavior, he was terminated from his position. The Unemployment Insurance Appeal Board ultimately denied Messado’s claim for unemployment insurance benefits on the ground that he was discharged from his employment because of his misconduct.

The Appellate Division dismissed Messado’s appeal seeking to overturn the Board’s decision. The court said that “Threatening behavior toward a coworker has been held to constitute disqualifying misconduct,” citing Matter of Perkins [Commissioner of Labor], 16 AD3d 756 and other court decisions.

The court also noted that “To the extent that [Messado’s] testimony was in conflict with the testimony of the other witnesses, this presented a credibility issue for the Board to resolve.”

Finding that “substantial evidence supports the Board's finding that claimant engaged in disqualifying misconduct,” the Appellate Division said that it found “no reason to disturb the Board's decision.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06343.htm

Settling disciplinary actions

Settling disciplinary actions
Wolfe v Jurczyski, 241 AD2d 88

In some disciplinary cases an employee is offered a settlement that typically provides for summary termination of the individual without a hearing if he or she violates any of the terms of the settlement. The Wolfe case explores the consequences of an employee’s failure to comply with the terms of a disciplinary settlement agreement.

James N. Wolfe, a Schenectady Police Lieutenant, was told that formal disciplinary charges would be filed against him in connection with an off-duty incident during which it was alleged that he had threatened a civilian with a gun.

The city subsequently agreed that it would not file formal disciplinary charges against Wolfe if he “enrolled and completed an established alcohol abuse treatment program, underwent a psychological evaluation, refrained from visiting certain establishments where liquor is served and divested himself of all off-duty weapons.”

The September 19, 1995 agreement also provided that Wolfe’s failure to comply with or satisfactorily complete any element of the agreement to Schenectady’s satisfaction “will be cause for [Wolfe’s] immediate dismissal without a hearing.”

On October 29, 1995 Wolfe told the Chief of Police that he had not yet begun a treatment program and was still drinking. He entered a program the following day. However the Chief subsequently learned that Wolfe, while intoxicated, had been involved in an incident on October 27, 1995.

After conducting an investigation of the October 27, 1995 incident, the Department told Wolfe that he could either resign or be terminated for violating the settlement agreement. After conferring with union representatives, Wolfe decided to submit a letter resigning from his position.

However, Wolfe apparently changed his mind about resigning and sued, seeking a court order reinstating him to his former position. He argued that he had resigned as a result of “duress, coercion and undue influence.” Wolfe’s theory was that under the circumstances his resignation was not voluntary and should be declared void. A New York State Supreme Court justice dismissed Wolfe’s Article 78 petition and the Appellate Division affirmed the lower court’s action.

The Appellate Division pointed out that Wolfe’s resignation was not involuntary simply because he was told that if he did not resign he would be dismissed unless the employer did not have any right to terminate his employment. But here, said the Court, Wolfe had voluntarily entered into an agreement that expressly allowed the department to terminate him without a hearing if he failed to comply with its terms to the satisfaction of the Chief of Police.

The Appellate Division ruled that under the circumstances, offering to allow Wolfe to resign instead of being summarily dismissed “cannot be deemed improperly coercive.”

It should be remembered, however, that courts will usually give controlling weight to specific language contained in the settlement agreement.

This was demonstrated in the Appellate Division’s ruling in Taylor v Cass, 505 NYS2d 929. The key element in the Taylor case was a disciplinary settlement agreement that provided that the employee, Taylor, would be subject to termination without any hearing if, in the opinion of his superior, his job performance was adversely affected by Taylor’s consumption of alcohol.

Taylor, however, was subsequently given a “Notice of Infraction” charging him with failing to give a fair day’s work and sleeping during scheduled working hours. A few days later he was terminated without a hearing, purportedly as authorized by the disciplinary settlement agreement.

He sued, and the Appellate Division affirmed the lower court’s ruling reinstating Taylor to his position with the County “with full retroactive salary and contract benefits from March 30, 1984.” The problem, said the Court, was that Taylor had not been terminated for the sole reason specified in the settlement agreement: intoxication on the job.

On this point, the decision specifically took note of the fact that Taylor’s superior testified that Taylor “was terminated solely for the reasons set forth in the Notice of Infraction” sent to him -- sleeping on the job and failure to give a fair day’s work.

The Appellate Division concluded that under the circumstances Taylor was entitled to a disciplinary hearing on those charges because the settlement limited the basis for dismissing him without notice and hearing. Accordingly, Taylor could only be dismissed for being intoxicated on the job.

What if an employer tells an employee that he or she will be served with disciplinary charges if he or she does not immediately resign for his or her position? The courts have ruled that where the appointing authority may lawfully file disciplinary charges against an employee, demanding that the individual resign or face disciplinary action does not constitute coercion.

In Rychlick v Coughlin, 63 NY2d 643, a case involving a corrections officer, the Court of Appeals ruled out that threatening to do what the appointing authority has a right to do – in this instance file disciplinary charges against Rychlick if he refused to resign from his position -- did not constitute coercion so as to make Rychlick’s resignation involuntary.

According, if the employee resigns in response to such a demand, the courts deem his or her action to be a voluntary resignation rather than the product of unlawful duress.