Reassignment of personnel

Reassignment of personnel
Superior Officers v Triborough Bridge & Tunnel Authority, Appellate Division, 244 AD2d 154

The Superior Officers Benevolent Association challenged the Triborough Bridge and Tunnel Authority's practice of assigning a sergeant to a lieutenant's post if the lieutenant was absent.

The Appellate Division dismissed the Superior Officer's petition, commenting that it would defer to the Authority's interpretation of its procedures for designating replacements for an absent lieutenant "since such interpretation is neither irrational nor unreasonable and effects a managerial determination within its purview." In other words, in the view of the Court the Authority was merely exercising its "management prerogatives" when it assigned a sergeant to a lieutenant's post if the lieutenant was absent.
.

Dismissal for disqualifying misconduct bars unemployment insurance benefits

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.
.

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.
.

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
.

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.
.