Excessive absenteeism basis for termination

Excessive absenteeism basis for termination
Cicero v Triborough Bridge and Tunnel Auth., 264 AD2d 334

The Triborough Bridge and Tunnel Authority [TBTA] terminated Rocco Cicero, a toll collector, after finding him guilty of charges alleging toll shortages, four unauthorized absences and excessive absenteeism. The finding of “excessive absenteeism” was based on Cicero being absent 80% of the time during a 22-month period. Most of this absence was because of an on-the-job injury suffered by Cicero and most of them were authorized by TBTA after periodic medical evaluations by its physicians.

After a hearing, the Administrative Law Judge (ALJ) sustained the toll shortage charge and one of the unauthorized absence charges, but dismissed the excessive absenteeism charge. The ALJ decided that although Cicero’s absences could be considered “excessive per se,” “it would be unfair to discipline employees for taking lengthy, injury-related leave” that was approved by the Authority without first giving the employee additional notice or warning as to what amount of absences would be deemed excessive and subject him or her to discipline. The ALJ recommended a 5-day suspension for the other infractions.

TBTA accepted the ALJ’s findings concerning the charges related to the toll shortage and unauthorized absences but, in addition, sustained the charge of excessive absenteeism. TBTA’s rationale: its rules explicitly authorized dismissal as a penalty for excessive absenteeism, and Cicero’s 80% absentee rate was plainly excessive.

TBTA’s appointing authority commented that Cicero’s absenteeism continued even after the charges were filed against him and that his excessive absences had resulted in serious morale and financial problems to the agency.

Cicero appealed and won an order by State Supreme Court Justice Alice Schlesinger annulling his termination and directing TBTA to reinstate him on the grounds that TBTA’s determination was arbitrary and capricious. Judge Schlesinger concluded that Cicero had been deprived of his due process rights, because he was not given notice that his approved absences could ultimately be considered “excessive”, and therefore misconduct. The Appellate Division reversed Judge Schlesinger’s ruling.

The Appellate Division decided that TBTA’s decision to terminate Cicero’s employment for excessive absenteeism “had a rational basis and should not be disturbed.” The courts said that the ALJ acknowledged that an absentee rate in excess of 50% “may be deemed excessive per se” and that Cicero’s absentee rate was well beyond that threshold. While the ALJ and Judge Schlesinger decided that Cicero had not been given “adequate notice,” the Appellate Division said that it disagreed and reversed.

The decision comments that TBTA’s rules clearly state that “excessive absence... will be cause for dismissal.” In addition, the governing collective bargaining agreement guarantees employees only 12 days sick leave per year, and TBTA issued a new policy in 1992 providing that a memorandum of unsatisfactory attendance would be issued to an employee after a 5th sick day was taken. This, said the court, meant that Cicero should have been on notice from numerous sources that excessive absences would not be tolerated.

The Appellate Division also rejected Cicero’s argument that his absences were approved and medically justified and therefore excused for the purposes of maintaining any disciplinary action against him.
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Filing a timely appeal challenging administrative decisions critical

Filing a timely appeal challenging administrative decisions critical
Decker v BOCES Monroe 2-Orleans, Decisions of the Commissioner of Education #14173

It is not unusual for a disappointed job seeker to press for reconsideration of his or her application for appointment. The Decker case demonstrates that once a “final determination” concerning the appointment is made, seeking reconsideration does not toll the statute of limitations for filing a timely appeal of the decision.

Marvin R. Decker applied for a teaching position with Monroe2-Orleans BOCES. In February 1998, he learned that another applicant had been selected and was to be appointed effective March 31, 1998. Decker then “engaged in lengthy correspondence” with the BOCES in an effort to secure his appointment to the position.

In June 1998, the district superintendent candidly advised Decker that the board was not going to change its mind and suggested that he “seek a determination” from the Commissioner of Education or the courts. Notwithstanding this suggestion, Decker continued to correspond with the BOCES through October 1998 and did not file his Section 310 appeal with the Commissioner until December 16, 1998.

The Commissioner dismissed Decker’s appeal as untimely, rejecting Decker’s request that his delay in filing the appeal be excused “because he was trying to resolve this matter with [the BOCES].” The Commissioner pointed out that there were “numerous decisions ... that an attempt to gain reconsideration of a final determination does not stop the running of the [statute of] limitations period.”

In addition, Decker’s appeal contained a fatal defect, which would have required the Commissioner to dismiss his appeal even if it were timely filed: Decker neglected to name, and serve, a necessary party to his appeal - the successful candidate.* The Commissioner noted that Decker sought an order directing his appointment effective March 31, 1998, which relief “clearly threatens the rights of the incumbent....”

Some of the technical elements to keep in mind in filing Section 310 appeals to the Commissioner of Education are:

1. Appeals must be filed within 30 days “from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown” [8 NYCRR 275.16].

2. If the agency agrees to “reconsider its original determination,” this decision would trigger a “new” statute of limitations period running from the date of the “new” final determination.

3. The appellant is required to file an affidavit proving service of a copy of the petition on the respondents [8 NYCRR 257.9; 276.8]

* Sometimes it is possible to correct this type of problem by filing a new appeal naming, and serving, all necessary parties omitted in the original appeal. Such a filing, however, must still meet the original time limits for perfecting the appeal.
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Using internal investigation reports in civil lawsuits

Using internal investigation reports in civil lawsuits
Ramirez v MBSTOA, 258 A.D.2d 326

It is not uncommon for an employer to undertake an “internal investigation” of an incident involving alleged negligence or misconduct on the part of an employee in the performance of his or her duties. For example, an internal affairs unit of a police department may conduct an “internal investigation” following allegations of negligence or misconduct filed against a police officer.

If the internal investigator finds that the employee “was at fault” and states this conclusion in his or her final report, may a plaintiff use this as an “admission” by the employer in a lawsuit for negligence?

Not necessarily. In Ramirez wanted to use an internal investigation report prepared by MBSTOA investigators that concluded that the MBSTOA’s driver who was involved in a particular accident was “at fault” in his lawsuit against MBSTOA to prove “negligence” on its part. The Appellate Division upheld a lower court’s ruling that Ramirez could not use the investigation report as evidence in the lawsuit that Ramirez brought against MBSTOA for negligence.

The court’s rationale: the admission of the report into evidence “would be unfairly prejudicial” to MBSTOA and “misleading to the jury.” The trial court had barred Ramirez’s introduction of the MBSTOA’s initial internal investigatory report because it found that the investigator’s determination was based on the Authority’s “internal rules and policies” and that those rules and policies “exceeded the applicable common-law negligence standard of care.”

In other words, MBSTOA demanded a higher standard of performance on the part of its drivers than was required under common law. The Appellate Division concurred with the Supreme Court judge’s ruling, observing that the initial report’s conclusion that the MBSTOA driver “was at fault” was changed on review to a finding of “questionable”.

The lesson here is that if an agency wishes to prevent adverse information contained in an internal investigation report from being used in a trial, it must show that the report was prepared in consideration of a standard of care that is higher than that imposed under common [or case] law.
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Filing an employer application for involuntary ordinary disability retirement on behalf of the employee

Filing an employer application for involuntary ordinary disability retirement on behalf of the employee
Oshinsky v NYC Housing Auth., USDC-SDNY

Various state retirement laws authorize an employer to file an application for retirement on behalf of an individual who is unable to perform his or her duties if the individual declines to do so. Can the filing of an employer application, resulting in the involuntary retirement of an employee, constitute an act of unlawful discrimination?

This was one of the issues considered by a federal district court judge in Oshinsky v New York City Housing Authority. The decision suggests that such a filing by an employer application could constitute unlawful discrimination if it is determined that it was in the nature of retaliation.

Abby Oshinsky, a former New York City Housing Authority [NYCHA] police officer, asked a federal district court judge to award her back pay, front pay, and $2 million in damages. She said her Title VII of the 1964 Civil Rights Act [42 USC 2000e] rights were violated as she was subjected to “retaliatory discharge,” unlawful discrimination, and sexual harassment. She also claimed violations of the state Human Rights Law.

Oshinsky had filed nine different complaints over a period of several years, three of which were brought under Title VII. One of her Title VII claims alleged that she had been the victim of a “retaliatory discharge” based on her having been retirement on ordinary disability as a result of NYPD (which had merged with the housing authority police) filing an employer application for retirement on her behalf.

Among the significant events relevant to Oshinsky’s claims:

1. In January 1994 Oshinsky, then an employee of NYCHA, slipped and fell while at work, striking her head. Initially assigned to “limited duty,” in November 1994, NYCHA placed Oshinsky on sick leave based on her “complaining of headaches, inability to concentrate, and feelings of anxiety and depression.”

2. NYCHA police were merged into NYPD while Oshinsky was on sick leave.

3. On August 9, 1995, Oshinsky, now a NYPD employee, applied for accident disability retirement and benefits, complaining of “post-concussion syndrome.”

4. As required by New York City regulations, NYPD then submitted an employer application for ordinary disability on Oshinsky’s behalf.

Oshinsky’s application for accidental disability retirement was rejected after a finding that her disability was not the “natural and proximate result of accidental injury received in the performance of police duty.” However, the application for ordinary disability retirement filed on her behalf by NYPD was approved and in November 1996, she was retired on ordinary disability.

Oshinsky has then filed a complaint with the EEOC contending that her retirement for “ordinary disability” was, in effect, a wrongful discharge. The EEOC issued a Notice of Right to Sue letter on May 28, 1998 but her claims against the NYPD for “retaliatory discharge” were dismissed by Federal District Court Judge Allen G. Schwartz. The court said that in order to establish a prima facie case of retaliation under Title VII and state law, a plaintiff must show three elements: (1) participation in a protected activity known to the defendant; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action.

While it was clear that Oshinsky applied for accident disability retirement and benefits based on her alleged “post-concussion syndrome,” in her Title VII complaint she contended that she had been “tricked” into filing the application. Judge Schwartz said that he assumed that for the purpose of deciding the City’s motion for summary judgment that “when the NYPD retired [Oshinsky] based upon a diagnosis of depression, and awarded her a less desirable [ordinary] retirement package, it subjected her to an adverse employment action.” Notwithstanding this, the court said that:

[w]e find, however, that [Oshinsky] has failed to demonstrate a causal connection between the sexual harassment complaints she filed while she was with NYCHA and what she refers to as her “forced” retirement by the NYPD. Plaintiff filed her complaints against NYCHA in February 1990 and January 1992. At the time she came to the NYPD, [Oshinsky] had been out on sick leave since November 1994. She was retired by the NYPD in November 1996, almost five years after the second complaint, without ever actually having performed any work for the NYPD. There is no basis to conclude that [Oshinsky’s] complaints, filed in 1990 and 1992 against one agency, led to her “forced” retirement in 1996 by another agency.

While the court in this case decided that in this instance there was no basis to conclude that NYPD’s filing an application on behalf of Oshinsky for ordinary disability retirement constituted a “retaliatory discharge,” the implication is that such a claim could serve as a basis for a Title VII action and, if proved, redress provided.

Judge Schwartz summarily dismissed the eight other claims filed by Oshinsky alleging violations of Title VII and the State Human Rights Law and various torts. With respect to Oshinsky naming her superior, Richie Aalbue, as a defendant, Judge Schwartz said that “no cause of action can lie against an individual under Title VII.” While the Title VII claims against Aalbue were dismissed, the decision notes that the Second Circuit has held that an individual who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the New York Human Rights Law, citing Matter of Tomka v Seiler Corporation, 66 F.3d 1295.
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Conduct that was the subject of counseling memoranda may be the basis for disciplinary charges subsequently served on the employee

Conduct that was the subject of counseling memoranda may be the basis for disciplinary charges subsequently served on the employeeMatter of Board of Educ. of the Dundee Cent. School Dist. v Coleman, 2010 NY Slip Op 51684(U), Decided on October 1, 2010, Supreme Court, Yates County, Judge W. Patrick Falvey [Not selected for publication in the Official Reports]

The Board of Education of the Dundee Central School District filed disciplinary charges against Douglas Coleman, a tenured social studies teacher, pursuant to Education Law §3020-a.

The Hearing Officer found the Coleman guilty of some of the charges and dismissed others. He imposed a penalty of suspension from all teaching duties without pay, but directed Dundee to continue paying its contributions for Coleman’s medical insurance coverage during the period of Coleman's suspension without pay. In accordance with the Hearing Officer's decision, Dundee set Coleman’s suspension without pay for the period from June 2, 2010 through February 1, 2011.

Dundee then filed a petition pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] asking the court to vacate a portion of the Hearing Officer's decision. Dundee argued that the Hearing Officer “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.”

The two major points advanced by Dundee:

1. The Hearing Officer was incorrect in dismissing certain charges that Dundee filed against Coleman on the theory that the school district had earlier given Coleman “counseling memos concerning the underlying conduct that gave rise to them.”

2. The Hearing Officer's determination that the school district must continue to pay employer contributions for Coleman’s health insurance coverage during his 6-month suspension without pay was inconsistent with Education Law §3020-a(4)(a), which section, it argued, “necessarily involves a suspension of all payments by Dundee for Coleman's benefit.”

As to the dismissal of certain of the disciplinary charges filed against Coleman, Judge Falvey said that “There is no support for the premise that if a School District gives a counseling memo in the first instance, rather than immediately proceeding to bring formal charges, that it has somehow waived its right to do so at a future date.”

Judge Falvey explained that it was clear from case law that a school district is not precluded from including incidents giving rise to counseling memoranda as part of formal charges in a Education Law §3020-a proceeding, citing Hoyt v. Board of Education of the Webuttuck Central School District, 52 NY2d 625 and Cohn v. Board of Education of the City School District of the City of New York, 74 AD3d 57.*

In the words of the court: “The gist of the foregoing cases stands for the proposition that teachers are not entitled to have Education Law §3020-a disciplinary protections just because a counseling memo issues. Rather, the courts note that the teachers are given an opportunity to file their written responses to the counseling memos and further action may never be taken against them. However, in the event formal disciplinary proceedings ensue the teachers are entitled to their full panoply of rights and protections under Education Law §3020-a. Clearly, based upon the foregoing case law, it is anticipated that school districts may choose to seek disciplinary charges against teachers based upon the totality of the circumstances the school districts are reviewing.”

Accordingly, Judge Falvey vacated the Hearing Officer's dismissal of Charge 1, Specifications 1.1, 1.2 and 1.3, as well as Charge 2, Specifications 2.1, 2.2 and 2.3.**

With respect to the Hearing Officer directing Dundee to continue making its employer contributions for Coleman’s health insurance premiums during the period of his suspension without pay, the court agreed with the school district that "a suspension without pay" pursuant to Education Law §3020-a(4)(a) necessarily involves a suspension of all payments by Dundee for Coleman's benefit.”

Judge Falvey then vacated the “Hearing Officer’s direction that Dundee pay for Coleman's health insurance benefits during his period of suspension,” explaining that “The statutory scheme clearly contemplates suspension of all financial benefits upon a suspension without pay.”

In addition, the court directed Coleman to reimburse Dundee for any such costs already advanced on Coleman's behalf by Dundee and Dundee was “immediately stayed from making any further contributions during the suspension period.”

Finally, Judge Falvey directed the Hearing Officer to reconsider Specifications 1.1 - 1.3 and 2.1 - 2.3, commenting that in the event the Hearing Officer "finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty."

In making its ruling, the Court said that Coleman's suspension was to continue in accordance with the Hearing Officer's existing decision, subject to any modification following the Hearing Officer’s reconsideration of the matter as directed by the court.

Harvey Randall Comments: As to the decision's addressing the payment of health insurance premiums during the period of a disciplinary suspension, such an individual remains an employee while so suspended without pay and may continue in the health insurance plan but if he or she remains in the plan, he or she is required to pay both the employer contribution and the employee contribution while he or she of "off the payroll." Technically, the individual is on "leave without pay" for a period equal in length to the period of suspension without pay imposed as the disciplinary penalty.

Although the ruling does not indicate the carrier of the health insurance plan provided by the school district, were it the State's health insurance plan [NYSHIP] 4 NYCRR 73.3(b)(1) would obtain. 4 NYCRR 73.3(b)(1), in pertinent part, provides: An employee on leave without pay … shall be required to pay the entire charge (both employee's and employer's contributions) on account of such coverage for each full pay period of absence .... [emphasis supplied].

Assuming, without deciding, that Dundee is not a participating employer in NYSHIP, the court's directive that Coleman reimburse Dundee for any such costs it already advanced on Coleman's behalf as premiums in a non-NYSHIP plan and staying Dundee from making any further employer contributions for health insurance during Coleman’s period of suspension without pay is consistent with the policy set out in 4 NYCRR 73.3(b)(1) with respect to participating employers.

With regard to State's dental insurance plan,*** 4 NYCRR 74.3(a) provides as follows:

Contributions. (a) Rate of contribution. The rate of contribution of the State on account of the coverage of its employees and their dependents shall be 100 percent of the charge on account of individual coverage and 100 percent of the charge on account of dependent coverage. Notwithstanding the foregoing provisions an employee on leave without pay, whose coverage is continued pursuant to this Part shall be required to pay the entire charge on account of such coverage for each full month of absence [emphasis supplied].

* The undersigned notes that the court also cited "Employment History and Disciplinary Action by Harvey Randall, 2001 No. 2 Pub. Emp. L. Notes 27," in its ruling on this point.

** The matter was remanded to the Hearing Officer to reconsider Specifications 1.1 - 1.3 and 2.1 - 2.3 with the comment that “If the Hearing Officer finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty.”

*** The State’s dental plan is available to employees of the State as an employer and to the employees of a public authority, public benefit corporation, or quasi-public organization of the State submitting a certified copy of a resolution of its governing body electing such inclusion to the President of the State Civil Service Commission.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51684.htm

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