Dismissal for disqualifying misconduct bars unemployment insurance benefits
Lubin v Sweeney, Appellate Division, 244 AD2d 755, Motion for leave to appeal denied, 91 NY2d 810
The State's Unemployment Insurance Appeal Board will not grant unemployment insurance benefits to a person who has lost a job if the reason for the discharge was misconduct or for some other disqualifying reason. In Lubin the Appellate Division sustained the board's denial of unemployment benefits.
Lubin, a New York City Transit Authority platform conductor, was terminated because he struck a passenger with a flashlight. The passenger had inserted her arm between the subway's car doors in an effort to reopen them after they had shut, leaving her minor son unattended outside on the subway's platform. As a result, Lubin was terminated for violating the Authority's rule prohibiting employees from striking passengers under any circumstances.
The Appellate Division sustained the Unemployment Insurance Appeal Board's ruling that Lubin "had lost his position under disqualifying conditions." It said that "a physical assault in the course of one's employment has been found to constitute disqualifying misconduct, as has the knowing violation of an employer's rules or policy" citing Graham v Sweeney, 233 AD2d 660.
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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 21, 2010
Family medical leave
Family medical leave
Dintino v Doubletree Hotels Corp., USDC EPa, 4 WH Cases2d 413
The Dintino case illustrates that under the Family Medical Leave Act [FMLA], the employer has the duty of determining whether or not an employee wishes to "charge" his or her absence from work to the 12-week FMLA period allowed employees each year.
Also, it is the responsibility of the employer to advise the individual, in writing, that it will count a particular absence against the individual's available FMLA leave.
According to U.S. District Court Judge John Fullam, the Doubletree Hotels Corporation failed in both duties in connection with Audrey Dintino's maternity. As a result, Judge Fullam found that the Company violated the FMLA because:
(1) it neglected to advise Dintino of her rights under the Americans With Disabilities Act and
(2) it terminated her when she did not return to work when her maternity leave ended.
Dintino had told Doubletree of her pregnancy and of her plans to take a three-month maternity leave commencing in July 1994. She actually left work on June 21, 1994 at the request of her physician when medical complications arose.
Doubletree claimed that her 12-week FMLA leave commenced on June 21, while Dintino contended that her "medical complications" triggered a "separate unpaid medical leave" under Doubletree's personnel policy and therefore her FMLA leave did not commenced until the expiration of that leave.
When Doubletree told Dintino that she had "abandoned her job" when she failed to work in October as scheduled, Dintino sued claiming the Company had violated her FMLA rights.
The Court agreed. It said that Doubletree had to give Dintino a written notice that the leave she was taking commencing in June was being charged as FMLA leave in order for it to be counted against her available annual FMLA leave. Doubletree's failure to do so was fatal to its claim that Dintino's June-October absence was part of her FMLA leave.
The Court pointed out that the employee is not required to identify the absence as being FMLA leave. According to the ruling, under federal Department of Labor regulations, "where there is ambiguity in the employee's request for leave the burden is on the employer to determine whether the leave is FMLA-qualifying" or not.
Finding that Dintino's FMLA leave commenced October 1994, the Court ruled that Doubletree's terminating her the following November "constituted an interference of [Dintino's] exercise of her FMLA rights." Why? Because, said the Court, Doubletree's failure to determine the type of leave Dintino intended to take from June 21, 1994 through October 7, 1994, coupled with its own leave policy, which the policy handbook distinguished from FMLA absences, supported its conclusion that the Company did not treat Dintino's June-October absence as FMLA leave.
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Dintino v Doubletree Hotels Corp., USDC EPa, 4 WH Cases2d 413
The Dintino case illustrates that under the Family Medical Leave Act [FMLA], the employer has the duty of determining whether or not an employee wishes to "charge" his or her absence from work to the 12-week FMLA period allowed employees each year.
Also, it is the responsibility of the employer to advise the individual, in writing, that it will count a particular absence against the individual's available FMLA leave.
According to U.S. District Court Judge John Fullam, the Doubletree Hotels Corporation failed in both duties in connection with Audrey Dintino's maternity. As a result, Judge Fullam found that the Company violated the FMLA because:
(1) it neglected to advise Dintino of her rights under the Americans With Disabilities Act and
(2) it terminated her when she did not return to work when her maternity leave ended.
Dintino had told Doubletree of her pregnancy and of her plans to take a three-month maternity leave commencing in July 1994. She actually left work on June 21, 1994 at the request of her physician when medical complications arose.
Doubletree claimed that her 12-week FMLA leave commenced on June 21, while Dintino contended that her "medical complications" triggered a "separate unpaid medical leave" under Doubletree's personnel policy and therefore her FMLA leave did not commenced until the expiration of that leave.
When Doubletree told Dintino that she had "abandoned her job" when she failed to work in October as scheduled, Dintino sued claiming the Company had violated her FMLA rights.
The Court agreed. It said that Doubletree had to give Dintino a written notice that the leave she was taking commencing in June was being charged as FMLA leave in order for it to be counted against her available annual FMLA leave. Doubletree's failure to do so was fatal to its claim that Dintino's June-October absence was part of her FMLA leave.
The Court pointed out that the employee is not required to identify the absence as being FMLA leave. According to the ruling, under federal Department of Labor regulations, "where there is ambiguity in the employee's request for leave the burden is on the employer to determine whether the leave is FMLA-qualifying" or not.
Finding that Dintino's FMLA leave commenced October 1994, the Court ruled that Doubletree's terminating her the following November "constituted an interference of [Dintino's] exercise of her FMLA rights." Why? Because, said the Court, Doubletree's failure to determine the type of leave Dintino intended to take from June 21, 1994 through October 7, 1994, coupled with its own leave policy, which the policy handbook distinguished from FMLA absences, supported its conclusion that the Company did not treat Dintino's June-October absence as FMLA leave.
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U.S. Circuit Court of Appeals rules that transsexuals are not a protected class for purposes of Title VII
U.S. Circuit Court of Appeals rules that transsexuals are not a protected class for purposes of Title VII
Krystal S. Etsitty v Utah Transit Authority, CA10, v. No. 05-4193
Krystal Etsitty, a transsexual and former employee of Utah Transit Authority (UTA), sued UTA and Betty Shirley, her former supervisor, pursuant to 42 USC. §2000e-2(a)(1) (Title VII) and 42 USC. §1983 (The Federal Civil Rights Act).
Etsitty alleged the Transit Authority terminated her because she was a transsexual and because she failed to conform to their expectations of stereotypical male behavior. She alleged that terminating her on this basis constituted gender discrimination in violation of both Title VII and the Equal Protection Clause of the Fourteenth Amendment.
The Transit Authority filed a motion for summary judgment and the District Court granted its motion.
The court ruled that transsexuals are not a protected class for purposes of Title VII and the prohibition against sex stereotyping recognized by some courts should not be applied to transsexuals.
The District Court also concluded that even if a transsexual could state a Title VII claim under a sex stereotyping theory, there was no evidence in this case that Etsitty was terminated for failing to conform to a particular gender stereotype. Etsitty appeals the district court’s order granting summary judgment to the defendants.
The Circuit Court of Appeals affirmed the District Court’s granting the Authority’s motion for summary judgment.
The full text of the Circuit Court’s decision is on the Internet at:
http://www.ca10.uscourts.gov/opinions/05/05-4193.pdf
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Krystal S. Etsitty v Utah Transit Authority, CA10, v. No. 05-4193
Krystal Etsitty, a transsexual and former employee of Utah Transit Authority (UTA), sued UTA and Betty Shirley, her former supervisor, pursuant to 42 USC. §2000e-2(a)(1) (Title VII) and 42 USC. §1983 (The Federal Civil Rights Act).
Etsitty alleged the Transit Authority terminated her because she was a transsexual and because she failed to conform to their expectations of stereotypical male behavior. She alleged that terminating her on this basis constituted gender discrimination in violation of both Title VII and the Equal Protection Clause of the Fourteenth Amendment.
The Transit Authority filed a motion for summary judgment and the District Court granted its motion.
The court ruled that transsexuals are not a protected class for purposes of Title VII and the prohibition against sex stereotyping recognized by some courts should not be applied to transsexuals.
The District Court also concluded that even if a transsexual could state a Title VII claim under a sex stereotyping theory, there was no evidence in this case that Etsitty was terminated for failing to conform to a particular gender stereotype. Etsitty appeals the district court’s order granting summary judgment to the defendants.
The Circuit Court of Appeals affirmed the District Court’s granting the Authority’s motion for summary judgment.
The full text of the Circuit Court’s decision is on the Internet at:
http://www.ca10.uscourts.gov/opinions/05/05-4193.pdf
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Police officer dismissed after failing to properly surrender a weapon
Police officer dismissed after failing to properly surrender a weapon
Doolittle v McMahon, Appellate Division, 245 AD2d 736
A State Trooper's failure to properly dispose of a weapon ultimately led to a fellow Trooper’s dismissal for "official misconduct." The misconduct, in the words of the Appellate Division, involved Doolittle's "purchasing [a] pistol from [a fellow Trooper] knowing that it was not lawfully possessed by him."
Dorothy Snyder had turned over a .32 caliber semiautomatic pistol that had belonged to her deceased husband to Trooper Warren Meizner. Meizner sold the weapon to Trooper James E. Doolittle for $50.
According to the court, the weapon was required to be surrendered to the Division of State Police. Rather than surrendering the pistol as required, Meizner sold the pistol to Doolittle who was then under an obligation to surrender it to the Division. Doolittle, rather than surrendering the firearm, attempted to convert it as his own property by filling out a State Police Acquisition or Disposition of Firearm Report [“D Form”] which was false.
In the course of filing the D Form, it was learned that the pistol had never been registered to Snyder. After an investigation, Doolittle was served disciplinary charges and found guilty of violating State Police regulations by "knowing violating Penal Law Sections 155.30 (larceny); 175.30 (offering a false instrument for filing); and 195.00 (official misconduct). The penalty imposed: dismissal.
The Appellate Division rejected Doolittle's appeal, holding that the disciplinary determination was supported by substantial evidence and the penalty imposed "was not so disproportionate as to be shocking to one's sense of fairness," citing Pell v Board of Education, 34 NY2d 222.
The Court said that the disciplinary panel had substantial evidence that Doolittle had "acquired the weapon in an unauthorized manner for his own benefit while acting in his official capacity ... and was under a duty to surrender the gun as a nuisance weapon to [the Division]. Not having done so, Doolittle was guilty of official misconduct.
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Doolittle v McMahon, Appellate Division, 245 AD2d 736
A State Trooper's failure to properly dispose of a weapon ultimately led to a fellow Trooper’s dismissal for "official misconduct." The misconduct, in the words of the Appellate Division, involved Doolittle's "purchasing [a] pistol from [a fellow Trooper] knowing that it was not lawfully possessed by him."
Dorothy Snyder had turned over a .32 caliber semiautomatic pistol that had belonged to her deceased husband to Trooper Warren Meizner. Meizner sold the weapon to Trooper James E. Doolittle for $50.
According to the court, the weapon was required to be surrendered to the Division of State Police. Rather than surrendering the pistol as required, Meizner sold the pistol to Doolittle who was then under an obligation to surrender it to the Division. Doolittle, rather than surrendering the firearm, attempted to convert it as his own property by filling out a State Police Acquisition or Disposition of Firearm Report [“D Form”] which was false.
In the course of filing the D Form, it was learned that the pistol had never been registered to Snyder. After an investigation, Doolittle was served disciplinary charges and found guilty of violating State Police regulations by "knowing violating Penal Law Sections 155.30 (larceny); 175.30 (offering a false instrument for filing); and 195.00 (official misconduct). The penalty imposed: dismissal.
The Appellate Division rejected Doolittle's appeal, holding that the disciplinary determination was supported by substantial evidence and the penalty imposed "was not so disproportionate as to be shocking to one's sense of fairness," citing Pell v Board of Education, 34 NY2d 222.
The Court said that the disciplinary panel had substantial evidence that Doolittle had "acquired the weapon in an unauthorized manner for his own benefit while acting in his official capacity ... and was under a duty to surrender the gun as a nuisance weapon to [the Division]. Not having done so, Doolittle was guilty of official misconduct.
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Sep 20, 2010
New York State Comptroller alleges retired police officer involved in a "pension padding scheme"
New York State Comptroller alleges retired police officer involved in a "pension padding scheme"
Source: Office of the State Comptroller
State Comptroller Thomas P. DiNapoli announced in a press release issued on September 17, 2010 that his Department's investigators found that a retired City of Rome Police Officer, Thomas C. Hubal, was involved in a “pension padding scheme."
The Comptroller said that Hubal was indicted “for illegally collecting more than $88,000 from the New York State and Local Retirement System over a nine-year period.” According to a report* published in September 2010 by the Comptroller's Investigations Unit, investigators from the Investigations Unit and Oneida County District Attorney Scott McNamara’s office found that Hubal was working for the Rome City School District without having obtained a waiver from the State Civil Service Commission, as required by State Law,** and without notifying the Comptroller’s Office that he would be returning to public employment.
In general, §150 of the New York State Civil Service Law prohibits a retired member of a public retirement system of this state*** collecting a retirement allowance from a New York public pension system from being employed by New York State or a political subdivision of New York State and simultaneously collecting a salary in excess of statutory salary limits imposed for such retirees returning to public service by law.
There are, however, certain exceptions to this general prohibition whereby:
1. A retiree who is age 65 or more may return to public sector employment without a reduction or suspension of his or her pension regardless of the amount of his or her public sector compensation;
2. The retiree may suspend his or her retirement allowance and rejoin the Retirement System;
3. The retiree, regardless of age, may be reemployed by the State or a political subdivision of the State without any reduction or suspension of his or her pension if he or she does not earn a salary in excess of the earnings limits set out in the RSSL.
4. A retiree "may be able to temporarily (and for a finite period of time)" earn a public sector salary in excess of the limits imposed by the RSSL if the retiree and the retiree’s prosective appointing appointing authority (on his or her behalf) apply for and are granted a waiver under very specific circumstances" prescribed in §211.
Although the New York State Retirement and Social Security Law permits a retiree receiving a retirement allowance from a public retirement system of New York State to temporarily return to work for a public entity without a reduction in his or her existing retirement benefits, provided the retiree satisfies specific legal requirements to do so, Hubal, said the Commissioner, "circumvented those legal requirements."
The Comptroller said that Hubal was arraigned in Oneida County Court on Friday, September 17, 2010 and charged with second-degree grand larceny and defrauding the government, both felonies.
The Comptroller also said Department investigators found evidence suggesting that others in the school district attempted to help Hubal illegally “double-dip,” commencing with Hubal’s hiring by school district officials in 1995 and their disregarding the requirements set out in New York State's laws concerning the reemployment of individuals receiving a retirement allowance from a public retirement system of this State.
In addition, DiNapoli said that the investigators found evidence suggesting that school district officials allowed Hubal to collect funds for travel and other expenses without the required documentation to support such expenses in excess of $20,000.
A retiree's failure to obtain the required §211 waiver in a timely fashion could result in civil financial liability as well. For example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could “recoup” over $100,000 of the retirement allowance that had be paid to Freda because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.
However, there are no limitiations with respect to the reemployment of a retiree of a New York public retirement system by an employer in the private section, by the federal government or by another state or a political subdivision of another state.
* The full text of the Comptroller’s report is posted on the Internet at http://www.osc.state.ny.us/reports/investigations/Rome_Report.pdf
** See §150 of the Civil Service Law and §211 of the Retirement and Social Security Law.
*** The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.
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Source: Office of the State Comptroller
State Comptroller Thomas P. DiNapoli announced in a press release issued on September 17, 2010 that his Department's investigators found that a retired City of Rome Police Officer, Thomas C. Hubal, was involved in a “pension padding scheme."
The Comptroller said that Hubal was indicted “for illegally collecting more than $88,000 from the New York State and Local Retirement System over a nine-year period.” According to a report* published in September 2010 by the Comptroller's Investigations Unit, investigators from the Investigations Unit and Oneida County District Attorney Scott McNamara’s office found that Hubal was working for the Rome City School District without having obtained a waiver from the State Civil Service Commission, as required by State Law,** and without notifying the Comptroller’s Office that he would be returning to public employment.
In general, §150 of the New York State Civil Service Law prohibits a retired member of a public retirement system of this state*** collecting a retirement allowance from a New York public pension system from being employed by New York State or a political subdivision of New York State and simultaneously collecting a salary in excess of statutory salary limits imposed for such retirees returning to public service by law.
There are, however, certain exceptions to this general prohibition whereby:
1. A retiree who is age 65 or more may return to public sector employment without a reduction or suspension of his or her pension regardless of the amount of his or her public sector compensation;
2. The retiree may suspend his or her retirement allowance and rejoin the Retirement System;
3. The retiree, regardless of age, may be reemployed by the State or a political subdivision of the State without any reduction or suspension of his or her pension if he or she does not earn a salary in excess of the earnings limits set out in the RSSL.
4. A retiree "may be able to temporarily (and for a finite period of time)" earn a public sector salary in excess of the limits imposed by the RSSL if the retiree and the retiree’s prosective appointing appointing authority (on his or her behalf) apply for and are granted a waiver under very specific circumstances" prescribed in §211.
Although the New York State Retirement and Social Security Law permits a retiree receiving a retirement allowance from a public retirement system of New York State to temporarily return to work for a public entity without a reduction in his or her existing retirement benefits, provided the retiree satisfies specific legal requirements to do so, Hubal, said the Commissioner, "circumvented those legal requirements."
The Comptroller said that Hubal was arraigned in Oneida County Court on Friday, September 17, 2010 and charged with second-degree grand larceny and defrauding the government, both felonies.
The Comptroller also said Department investigators found evidence suggesting that others in the school district attempted to help Hubal illegally “double-dip,” commencing with Hubal’s hiring by school district officials in 1995 and their disregarding the requirements set out in New York State's laws concerning the reemployment of individuals receiving a retirement allowance from a public retirement system of this State.
In addition, DiNapoli said that the investigators found evidence suggesting that school district officials allowed Hubal to collect funds for travel and other expenses without the required documentation to support such expenses in excess of $20,000.
A retiree's failure to obtain the required §211 waiver in a timely fashion could result in civil financial liability as well. For example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could “recoup” over $100,000 of the retirement allowance that had be paid to Freda because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.
However, there are no limitiations with respect to the reemployment of a retiree of a New York public retirement system by an employer in the private section, by the federal government or by another state or a political subdivision of another state.
* The full text of the Comptroller’s report is posted on the Internet at http://www.osc.state.ny.us/reports/investigations/Rome_Report.pdf
** See §150 of the Civil Service Law and §211 of the Retirement and Social Security Law.
*** The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.
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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; Principal Attorney, Counsel's Office, New York State Department of Civil Service, and Colonel, New York Guard.
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