Attorneys, Arbitrators, Mediators, Expert Witnesses

Attorneys, Arbitrators, Mediators, Expert Witnesses
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OATH administrative law judge recommends an award of $500 for the de minimis retaliation by supervisor against employee

OATH administrative law judge recommends an award of $500 for the de minimis retaliation by supervisor against employee
NYC Commission on Human Rights, ex rel. Cerullo v Fricione, OATH Index ## . 1865/10 & 1866/10

An alleged violation of New York City’s Human Rights Law was initiated by the New York City Commission on Human Rights (“the Commission”), pursuant to section 8-109(h) of the Administrative Code and section 1-71 of the Commission’s rules, 47 RCNY §1-71(a). Human Rights and heard by OATH Administrative Law Judge Faye Lewis.

Theresa Cerullo and Gregory Cerullo, A husband and wife who worked together on the custodial staff of a public high school brought claims of gender discrimination and retaliation against their supervisor.

ALJ Faye Lewis found that Mrs. Cerullo’s claims of gender discrimination were not proved. Although the supervisor was at times unpleasant, Judge Lewis decided that Mrs. Cerullo failed to prove that he treated men and women differently in the workplace.

However, Mrs. Cerullo proved that respondent took away Mr. Cerullo’s keys to the back room and garage in retaliation for Mr. Cerullo’s complaints about perceived discriminatory treatment against his wife.

Mrs. Cerullo, however, failed to prove that the supervisors retaliated against her husband by decreasing his overtime.

Judge Lewis recommended a $500 damage award for the de minimis retaliation proved by Mrs. Cerullo.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1865.pdf
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Dismissed probationer required to prove that his or her termination was for an improper reason

Dismissed probationer required to prove that his or her termination was for an improper reason
Matter of Lambert v Kelly, 2010 NY Slip Op 08618, decided on November 23, 2010, Appellate Division, First Department

Yolanda Lambert, a probationary police officer, challenged her termination from her position, alleging it was for an impermissible reason and in an effort to frustrate her receipt of vested interest retirement benefits.

Affirming the Supreme Court Alice Schlesinger’s decision dismissing Lambert’s petition, the Appellate Division said that the basic rules in adjudicating a probationer’s allegation that his or her probationary dismissal was unlawful are:

1. It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation or law; and

2. The burden of proving bad faith is on the employee, and its mere assertion, without supporting evidence, does not satisfy that requirement;

Here, said the Appellate Division, Lambert failed to produce competent proof that she was terminated for an impermissible or unlawful reason. On the contrary, the court pointed out that the record discloses a rational basis for the challenged determination, including:

1. Lambert had violated numerous NYPD regulations, including illegally parking her personal vehicle displayed an expired police parking permit that belong to another individual; and

2. Lambert used her position as an officer to try to get special treatment from the City Marshal's Office when attempting to retrive the illegally parked vehicle after it was impounded.

Finally, the Appellate Division said that there was no evidence that Lambert was dismissed “in order to frustrate her receipt of vested interest retirement benefits.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08618.htm
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Use of hearsay testimony in disciplinary actions permitted

Use of hearsay testimony in disciplinary actions permitted
Brinson v Safir, Appellate Division, 255 AD2d 247, Motion for leave to appeal denied, 93 NY2d 805

James Brinson, a New York City police officer, was dismissed after being found guilty of “knowingly and wrongfully associat[ing] with persons know to be engaged in criminal activity.”

The evidence against Brinson consisted of hearsay statements of two informants. The statements of the informants were corroborated by police surveillance. The Appellate Division said that such testimony, together with its corroboration, constituted substantial evidence of the charges filed against Brinson and dismissed his appeal.

Another aspect of the appeal involved Brinson’s being required to submit to a drug test. The Appellate Division said that “corroborated information” supplied by informants provided a “reasonable suspicion” to require Brinson to undergo drug testing.
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Protecting health insurance benefits after retirement

Protecting health insurance benefits after retirement
Rocco v City of Schenectady, App. Div., 252 AD2d 82, Motion for leave to appeal denied, 93 NY2d 1000
[Decided with Andriano v City of Schenectady, motion for leave to appeal denied, 93 NY2d 999]

In McDonald Police Benevolent Association v City of Geneva, 92 NY2d 326, the Court of Appeals ruled that there was no legal impediment to the City of Geneva’s unilateral alteration of “a past practice ... unrelated to any entitlement expressly conferred upon retirees in a collective bargaining agreement.”

The fact that retirees were involved was critical. The decision noted that “where a past practice between a public employer and its current employees is established, involving a mandatory subject of negotiation, the Taylor Law would bar the employer from discontinuing that practice without prior negotiation.”

But for retirees, benefits may be rescinded, even if established by past practice, if the benefits are not codified in a collective bargaining agreement to which the retirees were party, according to the McDonald decision.

Citing that ruling, a majority of an Appellate Division panel ruled in the Rocco and Andriano cases that a lower court was correct in barring the City of Schenectady from unilaterally changing the existing health insurance benefits of retired police officers and firefighters.

The critical difference was that in the Schenectady case the court found that the benefits were protected by the terms of a collective bargaining agreement negotiated pursuant to the Taylor Law.

Since 1969 labor agreements in Schenectady contained identical language providing that the city was to furnish, at its own expense, health insurance for retirees and their dependents “presently in effect for each member of the Department....” The Appellate Division said this meant that “when a member ... retired the coverage to which that individual was entitled [at the time of his or her retirement] remained fixed in time and could not be changed.”

The Appellate Division pointed out that:

1. The contract at issue had a duration of one to two years.

2. Once employees retire they are no longer represented by their union and have no collective bargaining rights under the Taylor Law.

3. Since retirees are not involved in subsequent negotiations, it is logical to assume that the agreement under which they retired was intended to insulate them from losing important insurance rights during subsequent negotiations.

The Court also distinguished the Rocco and Andriano plaintiffs, whose benefits were set out in a Taylor Law agreement, to those involved in the Geneva case. In Geneva, the retiree’s health insurance benefits were provided pursuant to a resolution adopted by the City Council rather than under a collective bargaining agreement.
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