Graduate Student seeks assistance concerning "making decisions in employment discrimination cases involving personnel selection procedures"

Graduate Student seeks assistance concerning "making decisions in employment discrimination cases involving personnel selection procedures"

Erica Drew, a graduate student at Florida International University, is collecting data for her Masters Thesis. This research is being supervised by Dr. Vish C. Viswesvaran, Director of the Industrial/Organizational Psychology Program at FIU.

Ms. Drew has asked that NYPPL post the following notice in an effort to assist her in obtaining an appropriate survey population for her study:

"The purpose of this research is to gain perspective on how attorneys make decisions in employment discrimination cases involving personnel selection procedures. I hope that this research will inform organizations, practitioners, and attorneys of selection procedure best practices.

"If you decide to participate, you will be asked to read a short vignette and complete a questionnaire. No identifying information will be collected, so rest assured your identity will remain anonymous. This study should take about 15 minutes of your time.



"If you are willing to participate please click the link below. Thank you for your time and I sincerely hope you will consider participating! If you have any questions or would like the results of this study sent to you, please contact me at edrew001@fiu.edu."

Ms. Drew notes that "IN ORDER TO PARTICIPATE YOU MUST BE A 3RD YEAR LAW STUDENT OR A PRACTICING ATTORNEY WHO HAS EITHER TAKEN AN EMPLOYMENT LAW COURSE OR PRACTICED EMPLOYMENT/LABOR LAW."

Here is the link to "sign-up" to participate in Ms. Drew's study:
https://fiu.qualtrics.com/SE/?SID=SV_8koUuQcezBBvb4E
NYPPL

Substantial evidence consists of relevant proof that a reasonable person would accept as adequate to support a conclusion

Substantial evidence consists of relevant proof that a reasonable person would accept as adequate to support a conclusion
Matter of Seltzer v City of Rochester, 2010 NY Slip Op 06846, Decided on October 1, 2010, Appellate Division, Fourth Department

Lawrence M. Seltzer commenced an CPLR Article 78* proceeding in an effort to obtain a court order annulling the determination terminating his employment as a City of Rochester Municipal Parking Coordinator following a disciplinary hearing held pursuant to Civil Service Law §75.

The Appellate Division dismissed his appeal, commenting that the disciplinary determination was supported by “substantial evidence, i.e., ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’”

The court also concluded that, under the circumstances of this case, the penalty of termination of employment does not constitute an abuse of discretion as a matter of law because it is not " so disproportionate to the offense as to be shocking to one's sense of fairness,’" citing Matter of Kelly v Safir, 96 NY2d 32.

* Section 76 of the Civil Service Law provides alternative appeal procedures to challenge a Section 75 disciplinary determination: [1] Appeal to the Civil Service Commission having jurisdiction within 20 days of his or her receiving notice of the determination; or [2] A judicial appeal pursuant to Article 78 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06846.htm
NYPPL

Duty of fair representation

Duty of fair representation
Runfola and Local 2028, 32 PERB 3028

Peter Runfola filed charges claiming that the Local 2028, International Longshoreman’s Association breached its duty of fair representation when it negotiated a contract layoff provision that “was a material change in the then existing contractual language, and that the recently elected [union officers] negotiated the clause to reward their supporters and punish their opponents, who included Runfola.”

PERB dismissed Runfola’s complaint as untimely, commenting that such a complaint had to be filed within four months of the date on which Runfola knew of the amendment to the collective bargaining agreement.

The contract had been amended in July 1998; Runfola filed his complaint in January 1999, more than six months after the contract had been amended.

PERB rejected Runfola’s argument that the Statute of Limitations to file his charge began to run in October 1998, when he was “actually harmed” because of the application of the amended provision to him and “caused him to lose a position ... he would have retained under the provisions of the prior agreement.”
.

Conforming of the arbitration award

Conforming of the arbitration award
Patry v Vill. of Tupper Lake, 262 AD2d 757, Motion for leave to appeal denied, 94 NY2d 753

The Patry decision by the Appellate Division provides an example of a rather rare event: a court providing relief that the award itself neglected to include.

In this instance, the arbitration panel decided that the employer had acted improperly in discharging Patry, but did not provide him with any remedy such as directing his reinstatement. The court corrected this omission.

The case began after Tupper Lake heavy equipment operator Jacques Patry was terminated from his position because he tested positive for marijuana in a random drug test. Patry filed a grievance under the collective bargaining agreement. Ultimately the “board of arbitrators” ruled that the village had discharged him “without proper reason”. The decision, however, did not indicate what remedial action was to be taken. When the village failed to restore him to his former position, Patry filed an Article 75 action to confirm the award together with an Article 78 action to compel the village to reinstate him. The village objected, citing paragraph 7.09 of the contract, which read as follows:

No Board of Arbitrators shall have power or jurisdiction to modify the Board of Trustees’ action. The Board of Arbitrators shall either find that the Board of Trustee’s action was not without proper reason in which event the suspension, demotion or discharge shall be sustained in full; or that the suspension, demotion or discharge was without proper reason.

A Supreme Court judge dismissed the action “because the arbitrators did not direct that petitioner be reinstated to his former position or awarded back pay and the labor contract did not grant them the authority to do so, there was no “award” to confirm”.

The Appellate Division reversed the lower court’s ruling. It pointed out that in the context of the contract, which established a “hierarchy of penalties that may be imposed under varying circumstances,” paragraph 7.09 merely precluded the arbitrators’ modification of a penalty, e.g., reduction of a penalty of discharge to one of suspension, that has been permissibly imposed by the Board.

In other words, if the arbitrators found that the individual was guilty of the disciplinary charges that were brought, they could not change the penalty imposed by the village.

The construction urged by the village “leads to an irreconcilable and absurd result, with the arbitrators granted the authority to declare that a grievant had been wrongfully suspended, demoted or discharged but denied the power to annul the impermissible penalty ....”

The Appellate Division’s conclusion: the arbitrators were authorized to annul the discharge and restore Patry to his former position. Although there was no indication of the reason why the arbitration board failed to do this, the court said the fact that the arbitrators failed to make a complete award does not mean that it could or should not recognize and confirm the award that they did make.

The Appellate Division apparently found it significant that the village did not contest the arbitrators’ finding that petitioner’s discharge was “without proper reason” nor did it provide any legal basis for vacating or modifying the arbitrators’ award (see, CPLR 7511).

The Appellate Division ruled that “on the merits, given our construction of paragraph 7.09 of the labor contract and the arbitrators’ determination that petitioner’s discharge was without proper reason, we conclude that the Board was required to retroactively restore petitioner to his employment, “less any amounts he received from employment or unemployment insurance benefits.”
NYPPL

Challenging an administrative determination while a related grievance is pending

Challenging an administrative determination while a related grievance is pending
Sokol v Granville CSD, 260 AD2d 692

The fact that a contract grievance is pending will not always bar an individual from suing. Nor must a complaint by a teacher necessarily be considered by the Commissioner of Education before it is ripe for adjudication by the courts. These points are illustrated in the Sokol case.

The Granville Central School District appointed David Sokol as a “noninstructional substitute teaching assistant/monitor” effective October 6, 1997. In January 1998, the district discontinued Sokol’s employment. The district viewed him as a temporary employee hired as a true substitute, while Sokol claimed he had been appointed to a vacant tenured position, and that his dismissal violated his due process rights.

Sokol served a “notice of claim” on the district and initiated an Article 78 action seeking a court order annulling his termination and directing the district to appoint him as a probationary teaching assistant retroactive to October 6, 1997.

The district did not file an answer to Sokol’s petition. It instead moved to dismiss Sokol’s Article 78 action on the grounds that:

1. A grievance was pending when Sokol filed his Article 78 action. This was a step three grievance [of a four step grievance procedure] challenging the district’s appointment of substitute teaching assistants filed by the Granville Central School Support Staff Association; and

2. Sokol had failed to exhaust his administrative remedy because he had not appealed his claims to the Commissioner of Education pursuant to Education Law Section 310.

Although these arguments proved persuasive to a state Supreme Court judge, the Appellate Division reversed the lower court’s action, holding that the existence of a grievance alleging violations of the collective bargaining agreement did not constitute an absolute bar to Sokol’s filing an Article 78 action. Nor was Sokol required to file an appeal with the Commissioner of Education before proceeding with his action at law.

The key element to this conclusion was that there was nothing in the record to indicate that Sokol was participating in the grievance brought by the Association.

The court cited the grievance itself, which said that Sokol was not a member of the Teachers Association and that he had not participated in the filing of the grievance, requested that it be filed on his behalf or actively participated in its prosecution.” Nor was the Association representing his interests in filing the grievance.

The Appellate Division commented that Sokol made a persuasive argument “that even if the Association is ultimately successful, there is no guarantee that he personally would benefit from the victory.”

Sokol was not required to exhaust his administrative remedy by appealing to the Commissioner of Education pursuant to Education Law Section 310 because he had alleged violations of his statutory rights. This, the Appellate Division ruled, allowed him a “direct resort to the courts,” citing a number of cases including Cohn v Board of Educ. of Hammondsport Central School, 58 AD2d 977.

Sokol was asserting violations of the Education Law and corresponding regulations -- not provisions of the collective bargaining agreement -- as the basis for his Article 78 petition.

The Appellate Division said that “the grounds urged for relief” and remedies sought in each forum are separate and distinct.

Reversing the lower court’s dismissal of Sokol’s complaint, the district was directed to file an answer within 20 days of the date of the decision.
NYPPL