OATH hearing officer denies 9-month postponement of disciplinary hearing while individual is on §72 disability leave

OATH hearing officer denies 9-month postponement of disciplinary hearing while individual is on §72 disability leave
New York City Department of Consumer Affairs v Santamaria, OATH Index #2455/10
NYPPL
The New York City Department of Consumer Affairs filed §75 disciplinary charges against Randi Santamaria alleging various acts of insubordination and “carelessness.” After several adjournments by both parties, Consumer Affairs asked the Administrative Law Judge to go forward with the disciplinary hearing scheduled for August 19 and 20, 2010.

Santamaria, however, had earlier requested leave under the Family Medical Leave Act based upon her mental health, her second request for such leave within the last two years. Consumer Affairs then had Santamaria evaluated by a psychiatrist. The psychiatrist found Santamaria “mentally unfit to work” and Consumer Affairs placed her on “a one-year involuntary leave under §72 of the Civil Service Law” effective May 13, 2010.

Prior to the scheduled disciplinary hearing Santamaria’s attorney asked for a stay of the §75 action based on Santamaria being place on §72 leave by the agency. Santamaria's attorney also stated that he was requesting a stay pending “the resolution" of the §72 proceedings and suggested that "should [Santamaria] not be able to return to work within the year, she could be terminated under §73 and the §75 case would be rendered moot.”*

Although OATH’s Administrative Law Judge John B. Spooner said that he was “skeptical of the legal soundness” of Consumer Affair’s decision “to proceed with a §75 proceeding immediately after finding an employee unfit and placing her out on involuntary leave, based upon the same acts charged in the misconduct case … nevertheless, [Santamaria's] request for a nine-month stay is problematic and cannot be granted.”**

Noting that an OATH Administrative Law Judge “possesses the power to adjourn an action ‘for good cause,’ lengthy adjournments due to another pending action have not been found to constitute sufficient cause and have generally been denied.”

Judge Spooner cited Department of Correction v. Noriega-Harvey, OATH Index No. 575/93, (“pendency of related litigation has apparently never been sufficient basis for grant of an indefinite adjournment of an OATH trial.”) and Department of Environmental Protection v. Bellach, OATH Index No. 1574/08 (denying respondent’s request for a stay of a disciplinary hearing during the pendency of criminal proceedings)” in support of his determination.

* This is not entirely accurate as an individual terminated from §72 leave pursuant to §73 of the Civil Service Law has the right to reinstatement to his or her former position in the event he or she applies for such reinstatement with the responsible civil service commission within one year after the termination of such disability. In the event the commission’s medical examiner certifies that the individual is physically and mentally fit to perform the duties of his or her former position, he or she is to be reinstated if a suitable position is available or place on a preferred list, depending on the situation.

** On this point ALJ Spooner said that at “the very least, the medical officer’s finding of unfitness in May 2010 would appear to significantly undermine the agency’s ability to establish, at a §75 hearing, that [Santamaria's] actions constituted intentional misconduct. At worst, seeking to punish an employee for conduct caused by a disability could arguably defy the entire policy underlying the legislature’s enactment of Civil Service Law §72 as an alternative to §75,” citing Dep’t of Housing Preservation & Development v. Chambart, OATH Index No. 380/84..

The decision is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-2455md.pdf

Electronic document preservation

Electronic document preservation
Information concerning the retention and preservation of electronic records prepared by the State and political subdivisions of the State is available at http://www.archives.nysed.gov/a/records/mr_erecords.shtml

Major topics addressed include:

1. Conducting a records inventory

2. Inventorying electronic records, [Electronic Records Inventory workshop];

3. Organizing electronic records;

4. Preservation of electronic records for the “long-term;” and

5. Security of electronic records including protecting records in the event of fire, flood, vandalism, viruses, hackers and “hard drive crashes.”

The staff of the New York State Archives note that “Computers and other electronic devices create many of the new records we use today.” Also noted is the fact that “These records, although electronic in format, are the same as records in other formats. Electronic records show how you conduct business, make decisions, and carry out your work. They are evidence of decisions and actions. Fundamental records management principles apply to electronic records and all other record formats.”

Workshops addressing the basics concerning the care of electronic records are offered by the Office of the State Archives and are listed on the Internet at Managing Electronic Records .

The State Archives administers the Local Government Records Management Improvement Fund (LGRMIF) to assist local governments manage their records, including their electronic record-keeping systems. Contact the State Archives at (518) 474-6926 or via e-mail, or contact your Regional Advisory Officer for information concerning such assistance.
.NYPPL

EEOC alleges female employee “pressured to enter into a sham marriage” constitutes sexual harassment

EEOC alleges female employee “pressured to enter into a sham marriage” constitutes sexual harassment
Source: Posted on the Internet in CCH Workday. Reproduced with permission. Copyright© CCH 2010, All rights reserved. If you wish to become a subscriber to CCH Workday, please go to http://www.employmentlawdaily.com/

“This is definitely not the garden-variety sexual harassment case — compelling employees to marry is a new twist,” said regional attorney Robert Canino of the EEOC’s Dallas district office.

“Asking women to marry as a part of their job duties or terms of employment is not only illegal under Title VII, but if the idea is to circumvent the immigration laws of the United States, the discriminatory treatment also puts the employees themselves in jeopardy of violating federal laws.”

The CCH item reports:

"Courtesy Building Services, a Texas-based janitorial and maintenance service, violated Title VII by subjecting a female employee to sexual harassment, including being pressured to marry a stranger from Thailand to promote his efforts toward citizenship, the EEOC charged in a recent lawsuit.

"According to the agency, Operations Manager Melissa Gaona was subjected to unlawful sexual harassment starting in 2005. In addition to lewd remarks said to her or in her presence by management personnel, she was asked by a manager to enter into marriage with a stranger, a non-citizen, to enhance his opportunity to achieve citizenship.

“Enduring supervisors’ comments about women’s bodies and accounts of visits to the local strip clubs shouldn’t be a job requirement,” said EEOC supervisory trial attorney Toby Wosk Costas.

“And pressuring a worker to enter into a marriage she doesn’t want, for ulterior motives, is simply unconscionable. It adds up to a hostile work environment that certainly violates federal laws against discrimination.

"In a suit filed in the Northern District of Texas, the EEOC seeks relief for Gaona as well as injunctive relief, including a court order to prevent the company from engaging in similar discriminatory conduct in the future; compensatory damages for emotional harm; and punitive damages to deter future acts of employment discrimination."
.NYPPL

School board not required to adjusting teaching schedules to avoid a layoff

School board not required to adjusting teaching schedules to avoid a layoff
Soukey v Cohoes City School Dist., Commissioner of Education Decision 14,106

Faced with a reduced work schedule or a perhaps layoff, a teacher may ask the school board to adjust the schedules of other teachers in order to retain him or her in a full-time position. Is the school board obligated to honor such a request?

This was one of the elements in Donna Soukey’s appeal to the Commissioner of Education. Soukey, tenured as a health teacher, was employed in a 6/10’s health teacher position following the abolishment of a full-time health teacher position by the district. Soukey was the least senior tenured health teacher at the time.

Soukey argued that the district “could have adjusted the schedules of other teachers ... to facilitate her assignment to classes within her various certification areas in order to retain her in full-time service.” She provided the Commissioner with examples of how the district could have accomplished this.

The Commissioner pointed out that a school board is “not required to shuffle the schedules of teachers in tenure areas other than health merely because [she] happens to hold certification in those areas.”

Noting that Soukey was the least senior teacher in the health tenure area, the Commissioner said that her services as a full time teacher were properly reduced. Commissioner Mills concluded that Cohoes was not required to make scheduling adjustments that would affect teachers’ services in any other tenure area in an effort to retain Soukey as a full-time employee.

The major element in Soukey’s appeal was her claim that she was not the least senior teacher in the health tenure area. The Commissioner ruled that there was nothing in the record to support overturning the district’s seniority determinations with respect to the several teachers in the health tenure area involved in this appeal.

Another aspect of the appeal concerned Soukey request for “reimbursement for the costs of bringing this appeal” as part of the relief she sought. The Commissioner responded by pointing out that he “lacks authority to award such costs and attorney’s fees in an appeal under Education Law Section 310” and dismissed this branch of Soukey’s appeal as well.

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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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NYPPL

Considering employee sick leave bank requests

Considering employee sick leave bank requests
Pocantico Hills CSD v Teachers Assoc., App. Div., 2nd Dept. 264 AD2d 397, Motion to appeal denied, 94 NY2d 759

The Taylor Law Agreement between the Pocantico Hills Central School District and the Pocantico Hills Teachers Association provided for a sick leave bank for use by teachers absent as a result of an “extended, serious illness or serious injury.”

Two teachers applied for contract sick leave bank credits in connection with their respective “extended post-pregnancy leave.” The district and the association deadlocked over the question of approving the use of sick leave bank credits for this purpose. The Taylor Law agreement provided that in the event the parties could not agree with respect to a request for use of sick leave bank credits, the question was to be referred to a mutually agreed upon physician. The physician selected by the parties concluded that the teachers’ pregnancies did not constitute “extended, serious illness or serious injury” within the meaning of the relevant provisions of the agreement.

Relying on this determination, the district denied both applications to use the sick leave bank for these pregnancy-related absences.

The association demanded that the issue be submitted to arbitration in accordance with the contract grievance procedure. The district objected and obtained an order from a State Supreme Court judge staying the arbitration [see Article 75, Civil Practice Law and Rules].

The Appellate Division affirmed the lower court’s determination. It said that the teachers’ eligibility for sick leave bank credits had been determined in accordance with the tie-breaking provisions of the agreement.

The court ruled that the grievance procedure, which expressly limited arbitration to grievances arising from the violation of specific terms and provisions of the agreement, was not available to the association in this instance.

The Appellate Division said that under the facts of this case, the Supreme Court judge had correctly determined that the denials of the applications filed by the two teachers fell outside the arbitration provisions of the agreement and thus its issuing a stay was appropriate.

Two additional arguments were advanced by the Association in support of its position. It contended that:

1. The provisions of the agreement relating to the sick leave bank are ill-suited to pregnancy-related leaves; and/or

2. Special consideration should be given to pregnancy-related leave requests.”

The Appellate Division rejected both of the arguments, commenting that these constituted “a matter for negotiation, not arbitration.”

If, on the other hand, the physician determined that the teacher suffered an “extended, serious illness or serious injury,” presumably the individual would be deemed eligible for sick leave bank credits notwithstanding the fact that the particular medical condition in question was pregnancy-related.
.NYPPL