Demoted whistle blower entitled to reinstatement to the higher-level former position or equivalent and lost salary plus “predetermination interest”

Demoted whistle blower entitled to reinstatement to the higher-level former position or equivalent and lost salary plus “predetermination interest”
Tipaldo v Lynn as Commissioner of the NYC Department of Transportation, 2010 NY Slip Op 06467, decided on August 24, 2010, Appellate Division, First Department

In August 1996, John Tipaldo, a long-time manager with the New York City Department of Transportation (DOT), was promoted to the position of Acting Assistant Commissioner for Planning. Tipaldo was earning an annual salary of $55,000 at the time and was advised that he would be given a $25,000 salary increase if his appointment became permanent.

Less than a year later Tipaldo was demoted from the Acting Assistant Commissioner position. As a result of the demotion, Tipaldo appointment to Assistant Commissioner position did not become permanent and he never received the $25,000 increase in salary.

Tipaldo challenged his demotion citing Civil Service Law §75-b, contending the demotion was in retaliation for his having reported to the Department of Investigation that a superior violated bidding rules (see 48 AD3d 361).*

The instant appeal was from an order following a nonjury trial on the issue of damages following the Appellate Division’s earlier ruling. This appeal challenged Supreme Court's awarding Tipaldo $175,000 in back pay, but without interest and the court’s directive that Tipaldo reinstated to the same, or to an equivalent position to the one that he had held before the retaliatory personnel action that gave rise to his initial lawsuit.

The Appellate Division affirmed the lower court’s ruling with respect to Tipaldo’s reinstatement but said that the award of back salary had to be redetermined because:

1. Tipaldo was entitled to an interest award as provided by Civil Service Law section 75-b; and

2. The record supports Tipaldo's request that he be reinstated "to the same position held before the retaliatory personnel action, or to an equivalent position" as provided by Labor Law §740[5][b]).

The Department, objecting to Tipaldo's reinstatement, argued that he was not entitled to such reinstatement as he had declined promotions 2000, 2001 and 2002. The Appellate Division rejected the Department's theory, commenting that the undisputed testimony of his current supervisor was that at the time of those offers of promotion Tipaldo feared that any promotion would be met with retaliatory action by agency personnel.**

As to the amount of back salary awarded by Supreme Court, the Appellate Division noted that Tipaldo had called an economics expert to establish the amount of back pay to which he was entitled. The expert testified that Tipaldo had lost $388,243 in earnings as a direct result of the retaliatory actions taken by defendants. Tipaldo’s expert also testified that, applying the statutory interest rate of 9% to the lost earnings, Tipaldo was owed a total of $662,721.

In contrast, said the Appellate Division, Supreme Court “without any explanation for how it arrived at the figure, awarded Tipaldo $175,000 in back pay” and denied Tipaldo’s request for pre-determination interest.

Significantly, the Appellate Division noted that the Department “chose not to call their own expert to offer an alternative theory of the earnings which plaintiff would have lost had he not been the victim of retaliation, or to explain why plaintiff's expert's analysis was flawed in any respect.” Thus, said the court, “the only expert opinion before us is [Tipaldo's] and we see no reason to disturb it.”

Further, the Appellate Division held that that predetermination interest is generally available to whistle blowers suing pursuant to Civil Service Law §75-b.

* See Tipaldo v. Lynn, 48 AD3d 361 for the Appellate Division’s ruling in this earlier case.

** The Appellate Division indicated that the fact that Tipaldo declined such promotions did not militate against honoring his request for reinstatement to the higher-level position at this time.

The instant decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06467.htm

The earlier decision, 48 AD3d 361, is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_01801.htm
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Individual determined to be suffering from a mental disability placed on involuntary Civil Service Law Section 72 leave of absence

Individual determined to be suffering from a mental disability placed on involuntary Civil Service Law Section 72 leave of absence
NYC Administration for Children’s Services v S.B., OATH Index #2425/10

The Administration for Children's Services sought to place a child welfare specialist on involuntary leave pursuant to Civil Service Law Section 72 because of alleged mental disability.

Although S.B. had a satisfactory work history with the Administration, OATH Administrative Law Judge Ingrid Addison found that the evidence, including testimony of S.B.'s colleagues that they felt concerned for their safety, examples of bizarre and rambling emails respondent had sent, and the expert reports of two psychiatrists demonstrated that S.B. was mentally unfit for duty.

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.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2425.pdf

Agility tests for firefighters must be validated as job related

Agility tests for firefighters must be validated as job related
Pietras v Farmingdale Fire District, USDC EDNY, 94-CV-0673

U.S. District Court Judge Denis R. Hurley ruled that an agility test for a volunteer firefighter unlawfully discriminated against Victoria Pietras because of her gender.

Pietras, a probationary volunteer firefighter with the Farmingdale Volunteer Fire Department, was required to drag to drag a 280 pound fire hose 150 feet in four minutes. Her best time was four minutes, forty-seven seconds. Rejected for full firefighter status, she sued contending that this portion of the agility test had a disparate impact on women in violation of Title VII of the Civil Rights Act of 1964.

Although Judge Hurley ruled that the Department “established that the contents of the test are job-related” he decided that “the same may not be said of the requirement that it be completed within four minutes.”

How was the four-minute hose drag requirement determined? The Department said that it gave the test to 44 members of the Department, including probationary and junior members. It found that the average time to complete the task was “about three and one half minutes.” It then added an additional half-minute for “leeway,” arriving at the four-minute requirement.

This process, said the Court, was insufficient to establish that “the four-minute time limit is anything other than arbitrary.”

Critical to Judge Hurley’s analysis was his finding that “the purpose of the test was to distinguish competent firefighter candidates from those without the necessary physical abilities to do the job.”

Judge Hurley concluded that to set a standard there had to be some type of job analysis but there was nothing in the record to indicate that such a study had been made, either before administering the test or “after the fact.” This, said the Court, indicated that the standard set by the Department had not been “validated.”

Judge Hurley directed the Department to reinstate Pietras, noting that it could administer another agility test to her as a pre-requisite to her becoming a full member but that any such test had to comply with the relevant federal and state civil rights laws.
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When appealing individual’s employment status all parties that may be affected must be named and served

When appealing individual’s employment status all parties that may be affected must be named and served
Five Residents v Liberty CSD, Decisions of the Commissioner of Education, Decision #13861

If a party wishes to have the Commissioner of Education review an issue, it is critical that all parties who might be affected by the Commissioner’s decision be named in the petition. This point was made clear in an appeal filed by five residents of the Liberty Central School District.

A five-year employment contract between Superintendent and the District was to terminate June 30. Prior to June 30, the parties signed a new contract providing for the Superintendents employment for an additional two years.

The resident-appellants challenged the extension of the contract, claiming it violated the “minimum/maximum” term provisions set out in Section 1711(3) of the Education Law.*

The Commissioner dismissed the petition without considering its merits. He commented that the residents had failed to name a necessary party -- the District’s Board of Education. The Commissioner said that “since the board’s agreement with the superintendent would be adversely affected by a decision in favor of the [residents], the board is a necessary party to this appeal.”**

* Section 1711(3) provides, in pertinent part: “a board of education may enter into a contract with such superintendent for a period of not less than three and not more than five years,”

** In addition, the Commissioner said that he would have had dismiss the appeal event if the board had been named in the petition as the issue had become moot as a result of the Superintendent’s having resigned and thus the contract that the residents sought to have annulled was no longer in effect.
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New York City Fire Department Emergency Medical Technician terminated after testing positive for cocaine

New York City Fire Department Emergency Medical Technician terminated after testing positive for cocaine
NYC Fire Department v Rivera, OATH Index #3416/09

OATH Administrative Law Judge Julio Rodriguez recommended termination of Carlos Rivera, a New York City Fire Department EMT.

Rivera tested positive for cocaine in a random workplace drug test -- registering more than 250 times the official cut-off.

The Department had previously sent him for voluntary rehabilitation three times and afterwards reinstated him to his position.

In his defense Rivera asserted that his drug addiction was a disability requiring accommodation.

ALJ Rodriguez disagreed, finding that Rivera did not establish that he was disabled within the relevant definition of disability set out in the federal Americans with Disabilities Act or the New York State Human Rights Law.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/09_Cases/09-3416.pdf