Unemployment insurance benefit adjusted to reflect retirement allowance

Unemployment insurance benefit adjusted to reflect retirement allowance
Licciardello v Comm. of Labor, 255 AD2d 850

Marie Licciardello left her teaching position with the City of New York. She later began to receive payments from her pension fund at the rate of $250 per week. In addition, Licciardello was receiving unemployment insurance benefits at the rate of $300 per week.

However, Section 600.7 of the Labor Law provides that an unemployment insurance claimant’s benefit rate is to be reduced in cases where the employer has contributed to the employee’s pension fund.

The Unemployment Insurance Appeal Board held that Licciardello’s unemployment benefit rate was subject to reductions by the amount of 50% of her pension payments, reflecting her employer’s contribution of over 50% of the funding of her pension plan. In addition, the board said that Licciardello was liable for, and had to repay, $3,250 for the overpayment of benefits.

The board determined that the actuarial value of Licciardello’s pension was $138,000 and that her contributions were $33,000, about a quarter of the actuarial value of the pension.

The Appellate Division said that this constituted substantial evidence supporting the board’s ruling that “her employer contributed over half of the actuarial value of [Licciardello’s] pension, thereby triggering the statutory reduction in benefits imposed by the Board.”
NYPPL

Determining if a demand for arbitration was timely filed

Determining if a demand for arbitration was timely filed
Matter of Town of N. Hempstead v Civil Serv. Employees Assn., Inc., 2010 NY Slip Op 08121, decided on November 9, 2010, Appellate Division, Second Department

Two days after the Town of North Hempstead terminated the employment of an employee CSEA advised the Town that it intended to proceed to arbitration. Two months after the employee’s date of dismissal CSEA submitted a demand for arbitration to the American Arbitration Association [AAA] challenging the employee’s dismissal.

North Hampstead filed an Article 75 petition to stay the arbitration contending that under the parties' collective bargaining agreement as well as a subsequent stipulation entered into between the parties, the demand for arbitration to the AAA had to be made within 10 days after the termination of the employee's employment.* The Town’s theory: CSEA’s demand for arbitration was untimely and it was thus entitled to a permanent stay of arbitration.

Although Supreme Court granted the Town’s petition, holding that "[t]here is no precedent for finding that notice to the [Town] of an intent to arbitrate also constitutes timely notice to the AAA as required by the [2008 stipulation],” the Appellate Division reversed the lower court’s decision.

In this instance, said the court, the relevant provisions state that "[w]ithin ten (10) days after . . . discharge . . . only the Union may proceed to Disciplinary Arbitration by written notification to . . . the Town Attorney, and in accordance with the rules and requirements of the AAA as they relate to Labor Arbitration."** This language, said the Appellate Division, “does not require that a demand for arbitration be made to the AAA within that 10-day period.” It simply requires that the Town be notified of the union’s intent within such period.

The court explained that the Stipulation, requiring that a demand for arbitration be made to the AAA within 10 days, refers only to those situations where there has been a Step 1 disciplinary procedure. Here there was “no such Step 1 procedure” making the 10-day rule for making a demand for arbitration to the AAA inapplicable.

Finally, said the court, “to the extent that the subject language governing the time to demand arbitration may be ambiguous, it should be resolved in favor of the employee's right to proceed to arbitration.”

* The Appellate Division noted that the Stipulation specifically provides that the Agreement's time "deadlines . . . are conditions precedent to arbitration." Rejecting CSEA argument that the issue of whether its demand for arbitration was timely made to AAA was for the arbitrator to determine, the court, citing Matter of All Metro Health Care Serv., Inc. v Edwards, 57 AD3d 892, ruled that a court, rather than an arbitrator, was to decide the matter.

** AAA rules do not impose any time limits for filing a demand for arbitration

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08121.htm
NYPP:

Hearsay evidence may be the basis for an administrative disciplinary determination

Hearsay evidence may be the basis for an administrative disciplinary determination
Matter of Hughes v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 07932, Decided on November 3, 2010, Appellate Division, Second Department

Thomas Hughes, an Office of Court Administration [OCA] court officer, was served with disciplinary charges alleging, among other offenses, failing to keep his uniform in proper condition, failing to keep his weapon properly loaded, and keeping an impermissible metal-jacketed round in his weapon.

The disciplinary hearing officer found that Hughes was guilty of “engaging in acts of misconduct and incompetency prejudicial to the good order and efficiency of the New York State Unified Court System and adversely reflecting on his fitness to continue as a court office.” OCA accepted the hearing officer’s recommendation that Hughes be dismissed from his position.

Hughes filed a petition pursuant to CPLR Article 78 seeking a court order vacating OCA’s decision to terminate him.

The Appellate Division dismissed Hughes petition noting that “appellate review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.” In this instance, said the court, the hearing officer’s findings were supported by substantial evidence.*

Addressing another issue concerning the evidence presented in the course of the disciplinary hearing, the Appellate Division commented that “Hearsay evidence may be the basis for an administrative determination,” citing Gray v Adduci, 73 NY2d 741.

As to the penalty imposed, dismissal, the court said that “termination of employment was not so disproportionate to the misconduct as to shock the conscience.”

* Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07932.htm
NYPPL

Termination during probation

Termination during probation
Rigney v Nassau Co. CSC, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Rigney decision illustrates that individuals who complain that their employer acted in bad faith in terminating them prior to the end of their probationary periods must demonstrate that their probationary performance was otherwise satisfactory in order to prevail.

Rigney, a former Nassau County probationary police officer, complained that her supervisor, Sergeant Daniel P. Flanagan, arbitrarily decided that she would not successfully complete her training at the Police Academy. According to her complaint, Sergeant Flanagan told Rigney “that the decision was already made and that it was only a matter of time before she was terminated.”

Ultimately the Academy’s Deputy Inspector, George Gudmundsen, recommended that Rigney be terminated because she had not maintained a 75 percent average, which constituted “unsatisfactory performance during her probationary period including a failure to satisfy the minimum academic criteria” The report also said that Rigney “repeatedly argues with Academy staff members”; “failed simulations training”; and “repeatedly failed to address Academy staff members in [the] prescribed manner.”

Rigney sued, seeking a court order annulling her dismissal. She contended that her termination was made in bad faith because “Sergeant Flanagan arbitrarily determined that she would be terminated notwithstanding [her attaining] a passing (i.e., 75 percent or higher average) grade.”

State Supreme Court Justice McCaffrey pointed out that a probationary employee, unlike a tenured public employee, has no property rights in the position and can be discharged without a hearing and without a stated specific reason, provided that: (1) the employee has completed the minimum but not yet served the maximum period of probation, (2) the discharge is in good faith, and (3) the action is not in violation of constitutional, statutory, or decisional law. [See McKee v. Jackson, 152 AD2d 547].

Justice McCaffrey dismissed Rigney’s petition, commenting that even assuming that Nassau County had predetermined that Rigney was to be terminated irrespective of her final grade, her unilateral failure to acquire the minimum passing average (75 percent) provided an independent lawful predicate for terminating her employment.

Significantly, the employee has the burden of proof in actions challenging his or her dismissal during the probationary period. As the Appellate Division recently stated in dismissing an appeal filed by a former probationer at the Town of Brookhaven, the employee has a burden to present “legal and competent evidence to show a deprivation of his rights, bad faith, or other arbitrary action constituting an abuse of discretion” by the employer [Iannuzzi v Town of Brookhaven, 258 AD2d 651].

In Iannuzzi’s case, the Appellate Division said that Iannuzzi’s termination “was based upon his unsatisfactory performance and was not arbitrary and capricious, but had a rational basis and was carried out in good faith.”
NYPPL

A public employer may discipline an employee for refusing to support employer’s change in its operation

A public employer may discipline an employee for refusing to support employer’s change in its operation
Lewis v Cowen,165 F.3d 154

J. Blaine Lewis, head of Connecticut’s lottery, was fired for refusing to publicly support a change in the lottery’s operations. Lewis was an unclassified employee and served at the pleasure of the Executive Director of the Connecticut Division of Special Revenue and the Gaming Policy Board.

Lewis had national prominence in the public gaming community. He served as President of the National Association of State and Provincial Lotteries, an association of public gaming executives in the United States and Canada, and had been featured on the cover of Public Gaming International, a trade magazine.

Problems began in 1988, when the state awarded a contract to install a statewide computer system for the sale of lottery tickets to General Instrument Corporation (GIC). Lewis opposed this move. After GIC’s system malfunctioned and created a system-wide breakdown of on-line sales, Lewis criticized GIC to the press. The board ordered him and other unit heads to stop all media contact, but this gag order was eventually lifted.

Another change Lewis opposed was increasing the pool of numbers from which the winning Lotto numbers were picked was from 40 to 44. Lewis believed that revenues would decrease and suspected that GIC had recommended the change merely to cover up problems with on-line ticketing.

His superior, the Executive Director, ordered him to present the change to the Board at a public meeting and to cite “all positives and no negatives.” Lewis balked and was fired by the board one day after it unanimously approved the change.

Lewis sued, contending that his termination constituted a violation of his First Amendment rights. He won a substantial jury verdict in U.S. District Court -- $2 million in compensatory damages and punitive damages plus $380,000 in attorney’s fees.

On appeal, the Second Circuit U.S. Court of Appeals reversed. While “it is by now well established that public employees do not check all of their First Amendment rights at the door upon accepting public employment,” the court said that Lewis’ case involves a different issue: may a public employer discipline an employee for refusing to speak?

Connecticut argued that it was entitled to terminate Lewis pursuant to the standard announced in cases such as Connick v. Myers, 461 U.S. 138 (1983), and Pickering v. Board of Education, 391 U.S. 563 (1968), and in the alternative, that its decision to terminate Lewis is shielded by a qualified immunity. The Circuit Court applied the so-called Pickering balancing test typically used in considering free-speech cases involving public employees in resolving the issue.

The Pickering test has two elements. The court must first decide whether the speech addresses a matter of public concern. If so, the court then must balance the interests of the employer in providing “effective and efficient” public services against the employee’s First Amendment right to free expression. The court addressed two key questions:

1. Did Lewis’s refusal to speak to the Board touch on a matter of public concern?; and

2. Did the potential disruptiveness of Lewis’s refusal to speak outweigh his First Amendment-based interest in not speaking?

Reviewing the evidence, the circuit panel concluded that as a matter of law Connecticut’s interest in the effective and efficient operation of its Lottery Division outweighed Lewis’s First Amendment interest in refusing to present the proposed Lotto change before the Board in a positive manner.

State officials testified that Lewis’s speech would “potentially interfere” with the Division’s operations and that his refusal to promote the proposed change would result in negative publicity and decreased morale, in turn impairing the profitability of the lottery. Concluding that under the circumstances Lewis’s termination was justified, the Court ruled that:

1. The lower court should have dismissed the action on the ground of qualified immunity.

2. The state defendants are immune from liability on Lewis’s state law wrongful discharge claim.

The decision also considered “the exceptional significance of a government employee’s interest in testifying truthfully before a legislative committee,” referring to Piesco v City of New York, 933 F.2d 1149,. In Piesco, the Second Circuit “refused to force employees like Dr. Piesco to choose between answering questions honestly and risk being fired on one hand, and committing perjury on the other” holding that there was no evidence that Dr. Piesco’s testimony interfered with government operations in a manner outweighing Dr. Piesco’s strong interest in testifying truthfully.

In contrast, the court said although Lewis had a strong First Amendment interest in testifying truthfully before the Board, it “did not believe that interest to have been implicated here because Lewis was directed to present the Division’s views, not his own.”

NYPPL