Establing a special eligible list

Establing a special eligible list
NYC v NYS Division of Human Rights, 250 AD2d 273

This case started 25 years ago when Eddie Ricks took and passed Civil Service Examination No. 3090 for the title of sanitation worker in the New York City Department of Sanitation (DOS). Ricks was disqualified because of spina bifida, a condition that, under the medical standards then in place, automatically disqualified an applicant for the position.*

In August 1990, the then-Commissioner of Human Rights signed an order upholding a finding of unlawful discrimination. However, the original eligible list had expired, preventing Ricks from being placed on a special eligible list on the basis of Deas v. Levitt (73 NY2d 525). Nevertheless, the then-Commissioner directed the city to pay Ricks compensatory damages consisting of back pay computed from the date he was disqualified to the date the eligible list expired (offset by his actual earnings during that time) as well as the compensatory damages recommended by an Administrative Law Judge.

The State Division Human Rights subsequently realized that the Commissioner who signed the order had appeared as counsel for SDHR in the matter and that “such dual participation in the proceedings” required de novo review and a new order. The newly appointed successor Commissioner vacated the 1990 order, conducted a de novo review of the hearing record and issued a new order that found that Ricks had been discriminated against on the basis of a disability that did not prevent him from performing the duties of the position sought. The city appealed the new ruling.

The Appellate Division said that there was a significance change in the Civil Service Law since Rick’s initial filing of his complaint with SDHR in 1983 with respect to the Division’s 1990 order. In 1990, under the Deas decision, once an eligible list expired, an applicant could be placed on a special eligible list only if he or she had commenced the proceeding challenging the validity of the list prior to its expiration. In 1994, specifically in response to Deas, the Legislature amended Civil Service Law Section 56 to provided that “[a]n applicant or eligible whose disqualification has been reversed or whose rank order has been adjusted subsequent to the expiration of an eligible list shall be placed on a special eligible list for a length of time ... not to exceed a maximum of one year” (CSL Section 56[3]).

The court said that the amendment recognized that because there were often long delays in adjudicating such claims, whether by administrative or judicial proceeding, “[t]oo often applicants find that, like those in Deas and DiNatale, they have won the battle to be found eligible to compete for a permanent civil service appointment, but have lost the war -- because the eligible list is approaching expiration or has expired.”

The Appellate Division resolved the matter by approving the Commissioner’s order in part, directing the city to:

(1) create a special eligible list for the position of sanitation worker for Ricks;

(2) award Ricks retroactive seniority if he is appointed from the special eligible list; and

(3) pay him $10,000 for mental anguish.

It rejected the Commissioner’s awarding Ricks back pay because Ricks only had “an expectancy” of employment rather than a guarantee of an appointment from an eligible list.

* The medical standards were subsequently revised, and the automatic disqualification for spina bifida was dropped.
NYPPL

Local law permitting suspension of an employee without pay beyond the 30 days permitted by Civil Service Law Section 75 held controlling

Local law permitting suspension of an employee without pay beyond the 30 days permitted by Civil Service Law Section 75 held controlling
Meringolo v Jacobson, 256 AD2d 20

Section 75(3) of the Civil Service Law authorizes the suspension of an individual upon whom disciplinary charges have been filed for up to 30 days without pay.* If the hearing has not been completed by the 30th day, the individual must be restored to the payroll. But what if a local law provides more flexibility? Which law takes precedence? The Meringolo shows that the answer depends on the details of the legislative history, including which law was enacted first.

Meringolo, a corrections captain, was suspended from his job with New York City for more than 30 days. Administrators cited City Administrative Code Section 9-112, which provides that a member of the city’s uniformed forces may be suspended without pay “while criminal charges are pending.”

When Meringolo challenged the legality of his suspension, the city cited Section 76(4) of the Civil Service Law, which provides that nothing in Section 75 shall be construed to “repeal or modify” any local law. The city claimed it could therefore legally suspend the captain without pay for than the 30-day period, as authorized by Section 75 pursuant to Section 9-112. The Appellate Division, upholding a lower court’s ruling, disagreed.

The court said the problem in the city’s reasoning was that Section 9-112 was not enacted until after Section 76(4) was legislated. Section 76(4) can be thought of as a “grandfather clause” that applies only to local laws enacted before its effective date. This implies that had Section 9-112 been in place prior to the adoption of Section 76(4), it would have been “grandfathered” and probably survived judicial review.

The Appellate Division affirmed the Supreme Court’s order directing the city to restore the captain to its payroll and pay him the back salary due him for the period of his suspension without pay in excess of 30 days.

* Disciplinary grievance procedures set out in a collective bargaining agreement may permit the suspension of an employee without pay pending the resolution of disciplinary charges. Also, Education Law Section 3020-a.2(b) authorizes an educator against whom charges have been filed to be suspended without pay if the individual has entered a guilty plea to or has been convicted of a felony crime involving “the criminal sale or possession of a controlled substance, a precursor of a controlled substance, or drug paraphernalia as defined in article two hundred twenty or two hundred twenty-one of the penal law; or a felony crime involving the physical or sexual abuse of a minor or student.”
NYPPL

Withdrawing from membership in a New York State public retirement system

Withdrawing from membership in a New York State public retirement system
Richardson v NYC Employees’ Retirement System, NYS Supreme Court, Justice Gammerman, [Not selected for publication in the Official Reports]

A member of a public retirement system may lose his or her eligibility for significant benefits if he or she decides to withdraw his or her contributions upon leaving public employment. The Richardson decision illustrates this.

Richardson, a New York City corrections officer, joined the New York City Employees’ Retirement System [NYCERS] in 1987. When he resigned from his position on September 29, 1997, Richardson submitted a form to NYCERS asking for a refund of all of the money he contributed to the System. In late November 1997, the System sent him a check for the full amount of his employee contributions -- approximately $19,000.

However, Richardson had also submitted an application for a disability pension to the Medical Division of NYCERS on October 14, 1997. He was found disabled by both the NYCERS Medical Board and an outside health provider after medical examinations. The Medical Division staff was unaware that Richardson had applied for, and received, his membership contributions.

On February 9, 1998, the Medical Division wrote to Richardson indicating that the Medical Board had approved his application and the NYCERS Board of Trustees would consider it. A few days later NYCERS again wrote to Richardson advising him that its February 9, 1998 letter was sent by mistake as he was in fact no longer eligible for disability retirement benefits because in September 1997 he elected to withdraw his employee contributions. Accordingly, said the System, he ceased to be a member of NYCERS and thus was ineligible for disability retirement benefits.

Richardson sued, contending that he was entitled to a disability pension since the Medical Board approved his initial application. He claimed that NYCERS’ determination rejecting his application for disability retirement was arbitrary, capricious and unlawful under both the United States and New York constitutions. He also claimed that had he been notified that the withdrawal of his contributions would disqualify him for disability retirement, he would have returned the money and remained a member of NYCERS.

As to Richardson’s argument concerning the rejection of his application for disability retirement, Justice Gammerman said that Section 517 of the Retirement and Social Security Law specifically provides that: “[u]pon withdrawal of contributions by a member ... membership in the public retirement system involved shall cease.” Justice Gammerman concluded that Richardson’s withdrawal of his contributions terminated his membership with NYCERS and his eligibility for disability benefits.

Justice Gammerman also rejected Richardson’s contention that the System should have warned him of the fact that he would become ineligible for benefits if he withdrew his contributions. He said that:

“there is no affirmative duty for NYCERS administrative staff to inform about the specifics of pension provisions beyond providing written material ... [members are] thus charged with constructive knowledge [of the pension materials]” and that “not inquiring about the status of one’s pension rights is unreasonable.”

The court held that NYCERS’ decision was reasonable and that its refusal to consider Richardson’s application for disability retirement benefits was neither arbitrary nor capricious. It then dismissed Richardson’s petition.

If a member of the New York State Employees’ Retirement [ERS] system leaves government service and does not withdraw his or her employee contributions, he or she continues to be a member of ERS. His or her ERS membership, however, will cease after five years have elapsed since he or she last left government service, or he or she dies or retires, whichever event first occurs [Section 40.f, Retirement and Social Security Law].

====================

John J. Murphy, the NYCERS' Executive Director from 1990 to 2005, e-mailed NYPPL stating that “I assume this member did not have 10 years of credited service. If he did, the refund was given contrary to law. The fact that he was granted a tentative disability, however, leads to the possibility that he may have had 10 years of service. Unless he was disabled due to an accident on the job, he would have had to have been credited with ten years of service to have been granted a disability. The crucial fact is how much service was he credited with when he resigned on Sept 27, 1997. Mr. Murphy further asked: “Did this plaintiff have 10 years of service in Sept, 1997? This supersedes the court decision. NYCERS must correct any error if they find them. If the refund was given after 10 years of credited service, it was invalid and therefore, the disability benefit is in force retroactively to 1997. [Mr. Murphy posts a blog focusing on the New York City Employees’ Retirement System at http://nycers-info-murphy.blogspot.com/ ]

NYPPL comments: Assuming, but not conceding, that Richardson did not have 10 years of member service at the time he withdrew his employee contributions, the Richardson decision demonstrates that in the event a member of a public retirement system withdraws his or her "employee contributions" upon resignation or termination, which he or she may elect to do if otherwise permitted, his or her membership in a New York public retirement system* ceases for the purposes of subsequently claiming eligibility for any benefit otherwise available to a member.

In contrast, were such an individual not to withdraw such employee contributions and he or she is later appointed to a position whereby he or she is required [or may elect] to become a member of a public retirement system of this State within the permitted period of time for "rejoining the System," his or her membership, and member service credit, could determined based on his or her membership as of the date of his or her separation. This suggests that absent compelling circumstances, the individual might be better served if he or she were to consider leaving the “employee contributions” with the System.

* The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.
NYPPL

Disability benefits - volunteer firefighters

Disability benefits - volunteer firefighters
Griffo v Onondaga Hill VFD, 256 AD2d 858

Although the Workers’ Compensation Board found that Greg Griffo had sustained a “permanent partial disability” as a result of two back injuries he suffered while serving as a volunteer firefighter, it also determined that Griffo had not “suffered a loss of [his] earning capacity” within the meaning of Section 3.8 of the Volunteer Firefighters’ Benefit Law.

Section 3.8 defines the term “loss of earning capacity” as the volunteer’s inability to perform his or her usual work, or some reasonably alternative employment, as a result of a service-related injury. This definition, the Appellate Division concluded, was the key to resolving Griffo’s appeal from the board’s determination.

According to the ruling, Griffo’s chiropractor authorized his return to work after both accidents. Some time later, the chiropractor imposed lifting and bending restrictions on Griffo because his back condition became exacerbated. According to Griffo, these limitations precluded him from applying for “higher paying and more physically demanding positions.”

However, the Appellate Division said that “the loss of opportunities for advancement is not relevant to whether [Griffo] suffered a loss of earning capacity within the meaning of Section 3.8.

The court noted that the statute simply does not make any provision for any award of benefits based on expected future income due to advancements or promotions. Since the record supported the board’s finding that Griffo “was capable of performing his usual work duties following both accidents,” his claim for benefits was properly rejected by the board.
NYPPL

Lunchtime injuries

Lunchtime injuries
Smith v City of Rochester, 255 AD2d 863

Donna Smith, a City of Rochester parking monitor, slipped on a wet floor and fell while leaving a restaurant during an unpaid lunch break. The Workers’ Compensation Board denied Smith’s workers’ compensation claim, finding that she had not sustained an accidental injury in the course of her employment.

The Appellate Division affirmed the board’s determination, holding that “lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break.” The court said that the record showed that Smith had discretion as to the time and location of her lunch breaks and the city neither suggested that she eat at that particular restaurant nor derived any benefit from her patronizing that establishment.
NYPPL