Termination pay and other compensation paid in anticipation of an employee’s retirement excluded in determining the individual’s final average salary

Termination pay and other compensation paid in anticipation of an employee’s retirement excluded in determining the individual’s final average salary
Matter of Thompson v New York State Teachers' Retirement Sys., 2010 NY Slip Op 08670, November 24, 2010, Appellate Division, Third Department

James R. Thompson was employed as a principal in the LeRoy Central School District. In accordance with the relevant collective bargaining agreement between the school district and the LeRoy Administrators' Association, Thompson was to receive 3.5% annual pay increases through the 2005-2006 school year.

The CBA also offered a retirement incentive wherein an administrator who retired immediately after becoming eligible to do so without penalty would receive a lump-sum payment of $20,750.

Although Thompson would have qualified for the incentive had he retired during the 2004-2005 school year, continued in his position. However, the school district and association executed a memorandum of understanding in 2005 that granted large annual raises to Thompson and another administrator nearing retirement age in the 2005-2006 and 2006-2007 school years.

When Thompson retired in 2007 retirement, the New York State Teachers’ Retirement System excluded his 2005-2006 and 2006-2007 salary increases when calculating his retirement benefit. Thompson sued but Supreme Court dismissed his petition.

The Appellate Division affirmed Supreme Court’s ruling, holding that NYSTRS had “appropriately calculated his final average salary using ‘the average regular compensation earned . . . during the three years of actual service immediately preceding his date of retirement.’”

The court explained that in order to prevent the artificial inflation of a member’s final average salary in determining the individual’s retirement allowance, Education Law §501 [11] [b], (see also 21 NYCRR 5001.1 [d]; 5003.1 [a]) requires NYSTRS to exclude any form of termination pay or compensation otherwise paid in anticipation of retirement.

As the 2005 memorandum of understanding stated that it was intended to "provide administrators with an incentive to continue [working] beyond retirement eligibility," and granted exceptional salary increases to Thompson [and other school administrators], the Appellate Division held that NYSTRS “rationally concluded from the above evidence that the disproportionate increases in his salary were made in anticipation of retirement.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08670.htm
NYPPL

Employee terminated after failing random drug test

Employee terminated after failing random drug test
Danese v NYC Transit Authority, App. Div., 256 AD2d 464, Motion for leave to appeal denied, 93 NY2d 811

In this appeal from administrative discipline cases involving a police officer’s failing a random drug test, the Appellate Division panels ruled that dismissal was not too harsh a penalty to impose after being found guilty of the offense.

New York City Transit Police Officer Salvatore Danese, tested positive for cocaine in a random drug test.

An administrative law judge found Danese guilty of “certain enumerated charges.” The penalty imposed by the Authority: termination.

Danese appealed, challenging the Authority’s determination and the penalty imposed. The Appellate Division said that dismissal under the circumstances “was not so disproportionate to the offense as to be shocking to one’s sense of fairness,” applying the so-called Pell standard [Pell v Board of Education, 34 NY2D 222].
NYPPL

Employment status as an employee determines an employer liability

Employment status as an employee determines an employer liability
Rudder v City of New York, Appellate Division, 254 AD2d 115

There is a saying that a police officer is “always on duty.” While there is a great deal of truth in that exaggeration, it does not follow that the police officer’s employer is liable for all off-duty acts or omissions by the officer. The Rudder case shows that the employer is liable only for off-duty acts involving the performance of official duties.

Rudder was involved in an automobile accident with Scott V. Thompson, an off-duty New York City police officer. Thompson had been driving to the office of the Police Surgeon “for an unscheduled visit” when the accident occurred.

Thompson was driving a vehicle owned by another officer, and that vehicle was uninsured, unregistered and uninspected at the time of the accident. In addition, Thompson’s driver’s license had been suspended.

Rudder sued the City of New York on the theory that the city was liable for Thompson’s actions under the doctrine of respondeat superior (“let the master answer”). Rudder argued that a police officer “is always on duty” and Thompson’s trip to the police surgeon’s office constituted “official business.”

After a State Supreme Court judge disagreed and dismissed the city as a party in the action, Rudder appealed to the Appellate Division.

The Appellate Division said that “given this set of circumstances ... Thompson had not during the relevant time frame been acting in the course of his employment” as a police officer. It sustained the lower court’s determination severing the City of New York as a respondent in the lawsuit.
If the court had declared that Thompson had been acting in the scope of his employment, the city would have faced significant legal bills. Typically, a public employer is required to provide for the defense and indemnification of its officers and employees held liable in lawsuits involving the performance of, or their failure to perform, their official duties.

A similar case was Sanchez v NYC Transit Authority, 254 AD2d 345. Christopher Huwer, an off-duty Transit Authority police officer, was involved in an altercation in the course of a traffic dispute. The Appellate Division rejected Huwer’s demand that the Transit Authority provide for his defense and indemnification as mandated by Section 18 of the Public Officers Law.

The Appellate Division said that the record supported the “corporation counsel’s conclusion that the altercation underlying [Sanchez’s] action was personal in nature, and that [Huwer] was not acting within the scope of his employment.”

It is worth noting that a different rationale is applied when considering off-duty misconduct by law enforcement personnel for the purposes of disciplinary action as opposed to employer liability.

Employers may discipline officers for off-duty misconduct, even if remote from their official duties, if the action brings disrepute upon the employer. For instance, a New York City firefighter was fired after he participated in a September 7, 1998 Labor Day parade was held in the Broad Channel neighborhood of Queens County. As part of the parade, a float appeared that was said to have been intended as a “parody” of African-Americans. Participants rode on a decorated flatbed truck wearing ‘black face’ and wigs.” Steiner unsuccessfully claimed he was unable to get a fair hearing because Mayor Rudy Guiliani had publicly vowed to fire any police or fire officers who were on the float. [Eagan v Von Essen, 260 AD2d 479].*

Similarly, the Appellate Division upheld the imposition of a 20-day suspension without pay when the police commissioner found that a police officer, while off-duty, “wrongfully and without just cause, harassed and threatened one of his neighbors” [Hogan v Bartton, Appellate Division, 254 AD2d 110].

Police officer Richard Hogan “warned the neighbor to ‘watch her back’ and [to have] used racial slurs while in a tirade....” The court said the penalty imposed did not “shock its sense of fairness,” and sustained the commissioner’s determination.

* See Von Essen v NYC Civil Service Commission, 3 A.D.3d 115 and Von Essen v. New York City Civil Service Com'n, 4 N.Y.3d 220, concerning other, jurisdictional, aspects of the underlying disciplinary action.
NYPPL

Employment status as an employee determines an employer liability

Employment status as an employee determines an employer liability
Rudder v City of New York, Appellate Division, 254 AD2d 115

There is a saying that a police officer is “always on duty.” While there is a great deal of truth in that exaggeration, it does not follow that the police officer’s employer is liable for all off-duty acts or omissions by the officer. The Rudder case shows that the employer is liable only for off-duty acts involving the performance of official duties.

Rudder was involved in an automobile accident with Scott V. Thompson, an off-duty New York City police officer. Thompson had been driving to the office of the Police Surgeon “for an unscheduled visit” when the accident occurred.

Thompson was driving a vehicle owned by another officer, and that vehicle was uninsured, unregistered and uninspected at the time of the accident. In addition, Thompson’s driver’s license had been suspended.

Rudder sued the City of New York on the theory that the city was liable for Thompson’s actions under the doctrine of respondeat superior (“let the master answer”). Rudder argued that a police officer “is always on duty” and Thompson’s trip to the police surgeon’s office constituted “official business.”

After a State Supreme Court judge disagreed and dismissed the city as a party in the action, Rudder appealed to the Appellate Division.

The Appellate Division said that “given this set of circumstances ... Thompson had not during the relevant time frame been acting in the course of his employment” as a police officer. It sustained the lower court’s determination severing the City of New York as a respondent in the lawsuit.
If the court had declared that Thompson had been acting in the scope of his employment, the city would have faced significant legal bills. Typically, a public employer is required to provide for the defense and indemnification of its officers and employees held liable in lawsuits involving the performance of, or their failure to perform, their official duties.

A similar case was Sanchez v NYC Transit Authority, 254 AD2d 345. Christopher Huwer, an off-duty Transit Authority police officer, was involved in an altercation in the course of a traffic dispute. The Appellate Division rejected Huwer’s demand that the Transit Authority provide for his defense and indemnification as mandated by Section 18 of the Public Officers Law.

The Appellate Division said that the record supported the “corporation counsel’s conclusion that the altercation underlying [Sanchez’s] action was personal in nature, and that [Huwer] was not acting within the scope of his employment.”

It is worth noting that a different rationale is applied when considering off-duty misconduct by law enforcement personnel for the purposes of disciplinary action as opposed to employer liability.

Employers may discipline officers for off-duty misconduct, even if remote from their official duties, if the action brings disrepute upon the employer. For instance, a New York City firefighter was fired after he participated in a September 7, 1998 Labor Day parade was held in the Broad Channel neighborhood of Queens County. As part of the parade, a float appeared that was said to have been intended as a “parody” of African-Americans. Participants rode on a decorated flatbed truck wearing ‘black face’ and wigs.” The firefighter unsuccessfully claimed he was unable to get a fair hearing because Mayor Rudy Guiliani had publicly vowed to fire any police or fire officers who were on the float..*

Similarly, the Appellate Division upheld the imposition of a 20-day suspension without pay when the police commissioner found that a police officer, while off-duty, “wrongfully and without just cause, harassed and threatened one of his neighbors” [Hogan v Bartton, Appellate Division, 254 AD2d 110].

Police officer Richard Hogan “warned the neighbor to ‘watch her back’ and [to have] used racial slurs while in a tirade....” The court said the penalty imposed did not “shock its sense of fairness,” and sustained the commissioner’s determination.

* See Von Essen v NYC Civil Service Commission, 3 A.D.3d 115 and Von Essen v. New York City Civil Service Com'n, 4 N.Y.3d 220, concerning other, jurisdictional, aspects of the underlying disciplinary action.
NYPPL

Diversity education effort results in allegations of “intentional infliction of emotional distress”

Diversity education effort results in allegations of “intentional infliction of emotional distress”
Graham v Guilderland CSD, App. Div., 256 AD2d 863, Motion for leave to appeal denied, 93 NY2d 803

Teacher John Birchler found himself named as a defendant in a lawsuit when the parents of a black student objected to some of the comments he made during a class discussion concerning “Homosexual Awareness.”

According to the decision by the Appellate Division:

While discussing a “Homosexual Awareness Assembly” that had been held the previous day, a student asked [Birchler] “Why not call them Faggots? That’s what they are!” In response [Birchler] pointed to Elizabeth, the only African American in the classroom and stated, “Why not call Liz a ‘nigger’ because that’s what she is? Liz, why not tell us what it feels like to be called a ‘nigger.’“

Elizabeth and her parents sued the district and Birchler, claiming [Elizabeth was the victim of the] “intentional infliction of emotional distress.” They contended that because Elizabeth was the only African American in the class Birchler had a “heightened duty, as a teacher and role model, to refrain from engaging in what they describe as a ‘vicious racial attack’ ... in front of her peers.”

The Appellate Division sustained a lower court’s dismissal of the Graham’s complaint, finding that the allegations “did not rise to the level of ‘extreme and outrageous conduct’ necessary to sustain such a claim.” The court explained its ruling by indicating that Birchler’s remarks, “considered in their entirety, were plainly intended to convey his strong disapproval of such epithets by exemplifying -- perhaps, too effectively -- the pain they can cause.”

One member of the appellate panel, Judge Cardona, dissented. He said that the Graham’s complaint should not have been dismissed by the trial court, noting that “although it does not appear that [Birchler] deliberately intended to cause harm to [Elizabeth], his disregard and invasion of her feelings and emotions was at the very least reckless.” The lesson here is that attempting to address cultural diversity issues in the classroom has the potential for polarizing the community and prompting legal action. Unfortunately, there is no simple formula that can be applied that will insulate educators from criticism or litigation in such situations.

As Judge Cardona noted in his dissenting opinion, “although I agree with the majority that an open exchange of ideas should be encouraged in a classroom setting, that goal must yield to the protection of one’s emotional well-being.” According to Judge Cardona, “the fact that [Birchler’s] remarks were used in the context of a classroom discussion allegedly for the purpose of spurring conversation about prejudice does not render them less objectionable.”
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