Police officer's termination for stealing money seized at a police raid ruled an appropriate penalty under the circumstances

Police officer's termination for stealing money seized at a police raid ruled an appropriate penalty under the circumstances
Renna v Safir, App. Div., 256 AD2d 219

In Renna v Safir the Appellate Division again applied the Pell standard – did the penalty imposed shock the conscience of the court.

Mary Renna was dismissed from her position as a New York City police officer after being found guilty of stealing money seized at an illegal gambling location during a police raid.

The court said that Renna’s guilt was supported by substantial evidence, including:

1. The images on a “videotape surveillance of the location,"

2. Renna's failure to report the allegations of corruption made against her in integrity tests conducted by Internal Affairs, and

3. Renna's admittedly false statements concerning the integrity test given in the departmental interview.”
NYPPL

Inability to perform essential duties trumps violation of American with Disabilities Act claims

Inability to perform essential duties trumps violation of American with Disabilities Act claims
Kees v Wallenstein, CA 9, 161 F.3d 1196

A number of correction officers in the State of Washington had been placed on light duty as a result of injuries sustained in the line of duty or as the result of non-work related illness. Their respective physicians had indicated that they should not have direct contact with prison inmates to avoid the possibility of further injury.

When the officers were removed from their positions they sued the Kings County Department of Adult Detention [Arthur Wallenstein, director], contending that their termination violated the Americans with Disabilities Act [ADA], 42 USC. Sections 12101-12213. The State of Washington, representing the county, argued that the officers involved were not “qualified individuals under the ADA” because their inability to have direct inmate contact prevented them from performing the essential functions of the corrections officer job.

The correction officers had informed Wallenstein that their conditions were permanent, and that no reasonable accommodation would allow them to have direct contact with inmates. After determining that direct inmate contact is an essential function of the corrections officer position, OHRM and Wallenstein separated plaintiffs from their jobs as corrections officers. The county had made a settlement offer -- each officer was offered a DAD non-commissioned, support position such as office technician, jail receptionist, or jail aide, at the full corrections officer salary. These employment offers were rejected because the positions required direct inmate contact.

The Circuit Court of Appeals said that in order to prevail on their claim, plaintiffs must establish that:

1. They are disabled within the meaning of the ADA;

2. They are qualified, with or without reasonable accommodation, to perform the essential functions of the job; and

3. The county terminated them because of their disability.

The Ninth U.S. Circuit Court of Appeals in San Francisco sustained the district court’s finding that the officers “are not qualified individuals with disabilities under the ADA.” It said that “no accommodation would allow them to have direct inmate contact, an essential function of the corrections officer position” as “their ability to restrain inmates during an emergency is critical to jail security.”

Another factor considered by the Circuit Court: the controlling collective bargaining agreement indicated that corrections officers are expected to rotate among several positions, most of which involve inmate contact.
NYPPL

Assurance of continued employment disqualifies educator for unemployment insurance benefits

Assurance of continued employment disqualifies educator for unemployment insurance benefits
Romano v Buffalo Bd. of Ed., App. Div., 256 AD2d 845
Cannizzaro v Buffalo Bd. of Ed., App. Div., 256 AD2d 846, Motion to appeal denied, 93 NY2d 815
Aljandari v Buffalo Bd. of Ed., App. Div., 245 AD2d 647
Dixon v Buffalo Bd. of Ed., App. Div., 256 AD2d 1046

A temporary teacher’s eligibility for unemployment insurance benefits upon termination of his or her temporary employment depends on whether or not he or she has been given “a reasonable assurance of continued employment” within the meaning of Section 590.10 of the Labor Law.

The following cases consider a number of different procedural and substantive issues involving claims for such benefits filed by temporary teachers. The basic lesson: employers will be required to provide substantial evidence of such assurances of continued employment to survive administrative and judicial scrutiny of objections to the payment of such benefits.

The Romano Case

Belmaries Romano and a number of other temporary teachers employed by the Buffalo Board of Education during academic 1994-95 were each sent a form letter dated June 9, 1995 indicating that they would be reemployed by the school board during the 1995-96 academic year.

Although initially unemployment insurance claims were denied on the basis of the form letter, an administrative law judge [ALJ] overturned that determination. The Unemployment Insurance Board [Board] affirmed the ALJ’s decision and then denied the school district’s application seeking to reopen the matter.

Although the Appellate Division recognized that “the decision to grant an application to reopen lies within the sound discretion of the Board,” it decided that the Board had abused its discretion when it rejected the school district’s application.

The court said that the school district’s motion for reopening and reconsideration of the issue of whether Romano and the other teachers “received a reasonable assurance of continued employment” as a result of the school district’s sending them a form letter should have been granted by the Board. The matter was remanded to the Board for further action.

The Cannizzaro and Aljandari cases

Both Eva Cannizzaro and Abdulla Aljandari were temporary teachers employed by the Buffalo City School District during the 1994-95 academic year. In June 1995, the school district sent each of them a letter “advising them that they would be reemployed during the then-upcoming 1995-1996 academic year.”

Both were denied unemployment insurance benefits on the grounds that they had received a reasonable notice of continued employment within the meaning of Section 590.10 at the end of the 1994-95 academic year. The Unemployment Insurance Appeals Board granted their applications to reopen and reconsider these denials of benefits.

The Board granted their applications and after reconsidering the matter, adhered to its prior rulings that both Cannizzaro and Aljandari had received reasonable assurances of continued employment.

The Appellate Division rejected their appeals, holding that the record indicated that the Board’s determinations regarding both teachers were supported by substantial evidence.

The Dixon decision

Amber Dixon and 19 other Buffalo City School District temporary teachers applied for unemployment insurance benefits at the end of the 1994-95 academic year. The Board ruled that the 20 teachers had not been provided with “a reasonable assurance of continued employment” for the 1995-96 academic year and approved their applications for unemployment insurance benefits.

The school district appealed, only to have the Appellate Division affirm the Board’s determinations. The court said that with respect to one teacher, Maria Orta, the district “admittedly failed to offer any proof [of such assurance] at the administrative hearing.”

As to the remaining 19 claimants, the Appellate Division set out the following guideline with respect to its considering Board determinations:

It is well settled that the issue of whether a claimant received a reasonable assurance of employment is a factual question for the Board to resolve and such determination, if supported by substantial evidence, will not be disturbed, even if other evidence in the record would support a contrary conclusion.

The Appellate Division said that although the teachers had been sent letters in June 1995 advising them that their services would be continued for the 1995-96 academic year “the Board concluded, in light of the proof adduced at the administrative hearings regarding the respective claimant’s particular employment situations, that the employer did not in fact provide claimants with a reasonable assurance of continued employment.”

The decision notes that 10 claimants worked in mathematics programs and the Board’s findings were supported by “extensive testimony regarding ... planned staff cuts for these departments.” As to the remaining teachers, the court said “it could not say that the Board erred in concluding that the employer failed to provide competent testimony regarding hiring lists and practices for those [other] areas [and thus] failed to demonstrate that it had provided these claimants with a reasonable assurance of employment for the 1995-1996 academic year.”
NYPPL

Designation of a beneficiary to receive retirement system death benefits

Designation of a beneficiary to receive retirement system death benefits
Estate of Kraut v City of New York, NYS Supreme Court, [not officially reported]

The Kraut case demonstrates the critical importance of a member actually filing a designation of beneficiary form with a public retirement system.

Although the New York City Employees’ Retirement System’s [NYCERS] records indicated that Kraut’s son Steven was his beneficiary, Gloria A. Djaha contended that NYCERS should have paid Kraut’s $268,000 [after taxes] death benefit to her.

Her argument: because Kraut had written “[t]he beneficiary whom I would nominate to receive the benefit payable after my death ... is my Financee [sic] ... is Gloria Anne Djaha on his retirement application form.”

But since Kraut never filed a formal Designation of Beneficiary form naming Djaha as his beneficiary, the court ruled that the son was Kraut’s lawful beneficiary.

Verizon FMLA settlement may exceed $6 million

Verizon FMLA settlement may exceed $6 million
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Verizon Communications, Inc. settled a class action lawsuit with the California Department of Fair Employment and Housing for up to $6,011,190.00. The suit alleged that between 2007 and 2010 Verizon denied or failed to timely approve class members' requests for leave for their own serious health condition, to care for a family member with a serious health condition, or to bond with a child.

The suit was brought under California's version of the FMLA, which is very similar to the federal Family and Medical Leave Act.

Verizon also agreed to review and revise its leave policies and procedures, and to train all California managers, supervisors and human resource personnel on legally compliant CFMLA procedures. Verizon did not admit to any wrongdoing in the settlement.

http://www.centralvalleybusinesstimes.com/templates/print.cfm?ID=16984

Mr. Bosland Comments: The settlement undoubtedly does not include Verizon's time and expense in defending the suit, which likely added another million dollars to the total tab.
Like the California FMLA, the federal FMLA allows aggrieved employees to file class action lawsuits for violation of their FMLA rights. Employers would be well-advised to continually monitor their leave policies to ensure they remain in compliance with ever-changing FMLA laws. As evidenced by Verizon, failure to do so may result in very expensive and time consuming litigation.