Second Circuit Court of Appeals explains why ADEA, Title VII, Equal Protection, LMRA and ERISA claims against the City had to be dismissed
Vandermark v City of N.Y., 09-4746-cv (2nd Cir. 9-7-2010) [Summary Order*]
Marshall Vandermark was the lead plaintiff when a number of Environmental Police Officers (EPOs) employed by the City of New York sued the City alleging that the City had violated various state and federal laws with respect to their compensation and fringe benefits.
The district court dismissed the federal claims for failure to state a cause of action and declined to exercise supplemental jurisdiction over Vandermark's State Law claims.
Vandermark had filed the lawsuit claiming violations of the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), the Labor Management Relations Act (LMRA), the Employee Retirement Income Security Act (ERISA), and Title VII of the Civil Rights Act as well as alleged violations of 42 U.S.C. §§ 1983 and 1985 [equal protection].
The Circuit Court affirmed the district court’s dismissal of Vandermark’s ADEA, Title VII, Equal Protection, and LMRA and ERISA claims.
The court explained that:
1. To establish their Title VII claim, a plaintiff would need to show employment discrimination on the basis of "race, color, religion, sex, or national origin" [see 42 U.S.C. § 2000e-2(a)(1)] but Vandermark alleged no such nexus.
2. To establish their ADEA claim, a plaintiff would need to show employment discrimination on the basis of age [see 29 U.S.C. § 623(a)(1)]. However, Vandermark complained of “unequal retirement benefits.” Such allegations do not encompass allegations of age discrimination said the court.
3. To establish §§ 1983 and 1985 equal protection claims, a plaintiff would need to show that there is no "reasonably conceivable state of facts that could provide a rational basis for the classification." The Circuit Court agreed with the district court's observation that "[t]here are numerous reasonable bases on which the City of New York might decide that NYPD officers and EPOs should receive different compensation and benefits, including the danger associated with the positions, the physical strain of the job, and the cost of living in the areas in which NYPD officers and EPOs work."
In addition, the court noted that neither the LMRA nor ERISA applies to political subdivisions of a State [see 29 U.S.C. § 152(2) (LMRA) and 29 U.S.C. §§ 1002(32), 1003(b) (ERISA)] and said that “It is clear to us . . . that the New York City Department of Health and Mental Hygiene is a `political subdivision' of New York that is exempt under [the statutes relied upon by Vandermark] ….”
As to Vandermark’s FLSA claim, the Circuit Court said that the district court “correctly applied the §207(k) exemption, [see 29 U.S.C. § 207(k)] as it was undisputed that EPOs [1] are "empowered . . .to enforce laws . . ., and to prevent and detect crimes"; [2] "ha[ve] the power to arrest"; and [3] "undergo on-the-job training and/or a course of instruction and study which typically includes physical training, self-defense, firearm proficiency, criminal and civil law principles, investigative and law enforcement techniques, community relations, medical aid and ethics," citing 29 C.F.R. § 553.211(a).
Finding no merit in Vandermark remaining arguments, the Circuit Court affirmed the district court's decision and dismissed his appeal.
* N.B. - Rulings by summary order do not have precedential effect.
The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/doc/09-4746_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/hilite/
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Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED IN COMPOSING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS.
Sep 15, 2010
Answering the questions asked by an investigator
Answering the questions asked by an investigator
Chance v Erickson, US Supreme Court, 522 U.S. 262
The U.S. Supreme Court has ruled that federal employees being investigated in connection with alleged employment-related misconduct who knowingly give false answers to the investigators may be given stiffer penalties than might otherwise be imposed on them for the underlying misconduct.
The Court said that an individual may decline to answer the question, or answer it honestly, but he [or she] cannot with impunity knowingly and willfully answer with a falsehood.
It is expected that other courts will follow the Supreme Court's rationale in cases involving efforts by state and municipal employers to impose additional sanctions on public employees who make false statements to persons conducting internal investigations of alleged wrongdoing by public workers.
The Chance decision concerned efforts by federal appointing authorities to increase the punishment imposed for misconduct in situations in which federal workers were found to have deliberately falsified responses to questions in the course of an internal investigation. Those investigations led to the filing of disciplinary charges against the individual under investigation.
The right to employee representation during questioning was not an issue in Chance. However, it should be noted that Section 75.2 of the Civil Service Law provides that an employee who at the time of questioning appears to be a potential subject of disciplinary action must be advised, in writing, that he or she has the right to have a representative present during the questioning. Disciplinary procedures negotiated under the Taylor Law frequently provide for employee representation during the investigatory phase of the procedure.
The Supreme Court overturned decisions by various appellate courts that upheld Federal Merit System Protection Board rulings that barred the imposition of extra punishment on employees who made false statements in the course of an internal departmental investigation of alleged misconduct by the employees.
The Board had reduced the harsher penalties by forcing federal employers to:
1. Issue a letter of reprimand instead of imposing demotions and 30-day suspensions on two individuals for working on non-government activities on government time.
2. Suspend a male supervisor for 14 days instead of demoting him for making inappropriate remarks to a female subordinate.
3. Suspend an individual for 15 days instead of dismissing the employee for motivating another individual to make harassing telephone calls to a third person.
4. Suspend an employee for 45 days instead of dismissing the individual for misuse of an agency credit card
5. Suspend a health employee for 90 days instead of instead of dismissing him for having had sex with a patient.
The Court commented that the fact that the false statements were not made under oath made no difference. Being charged and found guilty of making false statements in the course of an agency's investigation does not require that the employee make the false statements while under oath.
What about a situation where a truthful answer could expose the employee to criminal prosecution? If, said the Court, answering an agency's investigatory question could expose an employee to a criminal prosecution, he or she may exercise his or her Fifth Amendment right to remain silent -- but may not provide falsehoods in response to the question without being vulnerable to being disciplined for making such false statements.
As to the employee's refusal to answer, the decision notes that it may well be that an agency, in ascertaining the truth or falsity of the charge, would take into consideration the failure of the employee to respond ... there is nothing inherently irrational about such an investigative posture. The Court cited Baxter v. Palmigiano, 425 U.S. 308, which discusses the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify.
For these reasons, said the Court we hold that a government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct.
In another case, Brogan v United States, 522 U.S. 398, the Supreme Court, by a 7-2 vote, upheld the conviction of a former union officer who answered no to a question asked by investigators concerning illegal payments he was allegedly paid. This untrue response was the basis for his being convicted of a federal law that made any false, fictitious or fraudulent statements or representations to the federal government a felony, even if the statement was not made under oath. The Court said that the Fifth Amendment privilege against self-incrimination does not prevent the government from prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries by claiming the protection of the Fifth Amendment.
The test of the Chance decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/falsely-answering-investigators.html
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Chance v Erickson, US Supreme Court, 522 U.S. 262
The U.S. Supreme Court has ruled that federal employees being investigated in connection with alleged employment-related misconduct who knowingly give false answers to the investigators may be given stiffer penalties than might otherwise be imposed on them for the underlying misconduct.
The Court said that an individual may decline to answer the question, or answer it honestly, but he [or she] cannot with impunity knowingly and willfully answer with a falsehood.
It is expected that other courts will follow the Supreme Court's rationale in cases involving efforts by state and municipal employers to impose additional sanctions on public employees who make false statements to persons conducting internal investigations of alleged wrongdoing by public workers.
The Chance decision concerned efforts by federal appointing authorities to increase the punishment imposed for misconduct in situations in which federal workers were found to have deliberately falsified responses to questions in the course of an internal investigation. Those investigations led to the filing of disciplinary charges against the individual under investigation.
The right to employee representation during questioning was not an issue in Chance. However, it should be noted that Section 75.2 of the Civil Service Law provides that an employee who at the time of questioning appears to be a potential subject of disciplinary action must be advised, in writing, that he or she has the right to have a representative present during the questioning. Disciplinary procedures negotiated under the Taylor Law frequently provide for employee representation during the investigatory phase of the procedure.
The Supreme Court overturned decisions by various appellate courts that upheld Federal Merit System Protection Board rulings that barred the imposition of extra punishment on employees who made false statements in the course of an internal departmental investigation of alleged misconduct by the employees.
The Board had reduced the harsher penalties by forcing federal employers to:
1. Issue a letter of reprimand instead of imposing demotions and 30-day suspensions on two individuals for working on non-government activities on government time.
2. Suspend a male supervisor for 14 days instead of demoting him for making inappropriate remarks to a female subordinate.
3. Suspend an individual for 15 days instead of dismissing the employee for motivating another individual to make harassing telephone calls to a third person.
4. Suspend an employee for 45 days instead of dismissing the individual for misuse of an agency credit card
5. Suspend a health employee for 90 days instead of instead of dismissing him for having had sex with a patient.
The Court commented that the fact that the false statements were not made under oath made no difference. Being charged and found guilty of making false statements in the course of an agency's investigation does not require that the employee make the false statements while under oath.
What about a situation where a truthful answer could expose the employee to criminal prosecution? If, said the Court, answering an agency's investigatory question could expose an employee to a criminal prosecution, he or she may exercise his or her Fifth Amendment right to remain silent -- but may not provide falsehoods in response to the question without being vulnerable to being disciplined for making such false statements.
As to the employee's refusal to answer, the decision notes that it may well be that an agency, in ascertaining the truth or falsity of the charge, would take into consideration the failure of the employee to respond ... there is nothing inherently irrational about such an investigative posture. The Court cited Baxter v. Palmigiano, 425 U.S. 308, which discusses the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify.
For these reasons, said the Court we hold that a government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct.
In another case, Brogan v United States, 522 U.S. 398, the Supreme Court, by a 7-2 vote, upheld the conviction of a former union officer who answered no to a question asked by investigators concerning illegal payments he was allegedly paid. This untrue response was the basis for his being convicted of a federal law that made any false, fictitious or fraudulent statements or representations to the federal government a felony, even if the statement was not made under oath. The Court said that the Fifth Amendment privilege against self-incrimination does not prevent the government from prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries by claiming the protection of the Fifth Amendment.
The test of the Chance decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/falsely-answering-investigators.html
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Appealing a Disciplinary Action
Appealing a Disciplinary Action
Podszus v Mt. Vernon, App Div, 246 AD2d 548
The Podszus case demonstrates the importance of selecting the correct forum to hear an appeal.
The Commissioner of Public Safety found William Podszus, a City of Mount Vernon police officer, guilty of charges of insubordination and malicious gossip and imposed as the penalty of the forfeiture of 10 days of pay. Podszus filed an Article 78 action in State Supreme Court challenging both the evidentiary basis for the Commissioner's determination and the penalty imposed. This proved to be the wrong court for such an appeal.
The Appellate Division said that Section 120 of the City's Charter provided that the exclusive vehicle for a police officer seeking review of a determination of the Commissioner is a direct appeal to the Appellate Division within 30 days following the Commissioner's decision.
Accordingly, the Court dismissed the appeal as the Supreme Court did not have subject matter jurisdiction to consider Podszus' petition nor authority to transfer it to the Appellate Division.
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Podszus v Mt. Vernon, App Div, 246 AD2d 548
The Podszus case demonstrates the importance of selecting the correct forum to hear an appeal.
The Commissioner of Public Safety found William Podszus, a City of Mount Vernon police officer, guilty of charges of insubordination and malicious gossip and imposed as the penalty of the forfeiture of 10 days of pay. Podszus filed an Article 78 action in State Supreme Court challenging both the evidentiary basis for the Commissioner's determination and the penalty imposed. This proved to be the wrong court for such an appeal.
The Appellate Division said that Section 120 of the City's Charter provided that the exclusive vehicle for a police officer seeking review of a determination of the Commissioner is a direct appeal to the Appellate Division within 30 days following the Commissioner's decision.
Accordingly, the Court dismissed the appeal as the Supreme Court did not have subject matter jurisdiction to consider Podszus' petition nor authority to transfer it to the Appellate Division.
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Determinng Claims for accidental disability retirement benefits based on GML Section 207-kk, the so-called "Cancer Bill"
Determinng Claims for accidental disability retirement benefits based on GML Section 207-kk, the so-called "Cancer Bill"
Kopetz v Article 1-B Pension Fund, 255 A.D.2d 443
The so-called Cancer Bill, General Municipal Law Section 207-kk, provides eligibility for accidental disability retirement under certain conditions.
Frederick Kopetz, a former New York City firefighter, challenged a determination by his pension fund rejecting his application for an accidental disability retirement allowance. Kopetz's claim was based on his having had cancer and undergoing a nephrectomy for removal of the right kidney.
Kopetz had returned to full duty, and had been cancer-free since the surgery. He was placed on light duty because of other medical conditions. Eventually the Medical Board of the New York City Fire Department Article 1-B Pension Fund concluded that he was not capable of full duty and recommended that he be retired on ordinary disability.
The Board of Trustees of the pension fund concurred. It observed that Kopetz's own physicians indicated that his disability was caused by hypertension and cerebrovascular insufficiency. Because his disability was not result of cancer or any line-of-duty injury, the board concluded that he was not entitled to benefits under the cancer bill.
Kopetz objected, contending that he should be retired on accidental disability retirement on the theory that he was entitled to an ADR because he once had cancer.
He contended that the law granted accidental disability retirement benefits to qualified persons who suffer:
... any condition of impairment of health caused by (i) any condition of cancer affecting the lymphatic, digestive, hematological, urinary or prostate systems or (ii) melanoma resulting in total or partial disability or death to a paid member of a fire department in a city with a population of one million or more [i.e., the City of New York], who successfully passed a physical examination on entry into the service of such department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty unless the contrary be proved by competent evidence.
New York State Supreme Court Justice Vaughan dismissed Kopetz's petition. The court commenting that Kopetz, who bore the burden of proof, had not met his burden. A court cannot disturb an administrative determination unless it finds that the determination is arbitrary or capricious or erroneous as a matter of law. Justice Vaughn said there was no basis for such a determination in this case.
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Kopetz v Article 1-B Pension Fund, 255 A.D.2d 443
The so-called Cancer Bill, General Municipal Law Section 207-kk, provides eligibility for accidental disability retirement under certain conditions.
Frederick Kopetz, a former New York City firefighter, challenged a determination by his pension fund rejecting his application for an accidental disability retirement allowance. Kopetz's claim was based on his having had cancer and undergoing a nephrectomy for removal of the right kidney.
Kopetz had returned to full duty, and had been cancer-free since the surgery. He was placed on light duty because of other medical conditions. Eventually the Medical Board of the New York City Fire Department Article 1-B Pension Fund concluded that he was not capable of full duty and recommended that he be retired on ordinary disability.
The Board of Trustees of the pension fund concurred. It observed that Kopetz's own physicians indicated that his disability was caused by hypertension and cerebrovascular insufficiency. Because his disability was not result of cancer or any line-of-duty injury, the board concluded that he was not entitled to benefits under the cancer bill.
Kopetz objected, contending that he should be retired on accidental disability retirement on the theory that he was entitled to an ADR because he once had cancer.
He contended that the law granted accidental disability retirement benefits to qualified persons who suffer:
... any condition of impairment of health caused by (i) any condition of cancer affecting the lymphatic, digestive, hematological, urinary or prostate systems or (ii) melanoma resulting in total or partial disability or death to a paid member of a fire department in a city with a population of one million or more [i.e., the City of New York], who successfully passed a physical examination on entry into the service of such department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty unless the contrary be proved by competent evidence.
New York State Supreme Court Justice Vaughan dismissed Kopetz's petition. The court commenting that Kopetz, who bore the burden of proof, had not met his burden. A court cannot disturb an administrative determination unless it finds that the determination is arbitrary or capricious or erroneous as a matter of law. Justice Vaughn said there was no basis for such a determination in this case.
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Retirees’ rights to health insurance benefits
Retirees’ rights to health insurance benefits
Prater v Ohio Education Assoc. CA6, Docket #06-4393
Retired employees of Education Association sued, contending that the Association had improperly terminated their health benefits that had been provided in accordance with the terms of a series of collective bargaining agreements.
The Circuit Court ruled that descriptions of health insurance benefits prepared by the Association cannot supersede the provisions set out in a collective bargaining agreement.
The full text of the decision is posted at:
http://www.ca6.uscourts.gov/opinions.pdf/07a0405p-06.pdf
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Prater v Ohio Education Assoc. CA6, Docket #06-4393
Retired employees of Education Association sued, contending that the Association had improperly terminated their health benefits that had been provided in accordance with the terms of a series of collective bargaining agreements.
The Circuit Court ruled that descriptions of health insurance benefits prepared by the Association cannot supersede the provisions set out in a collective bargaining agreement.
The full text of the decision is posted at:
http://www.ca6.uscourts.gov/opinions.pdf/07a0405p-06.pdf
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Editor in Chief Harvey Randall served as Director of Personnel, SUNY Central Administration, Director of Research , Governor's Office of Employee Relations and Principal Attorney, Counsel's Office, New York State Department of Civil Service.
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