Ordering worker to report to agency’s medical clinic for an examination does result in liability if the employee’s injury is exacerbating as a result

Ordering worker to report to agency’s medical clinic for an examination does result in liability if the employee’s injury is exacerbating as a result
Bonomonte v City of New York, 2010 NY Slip Op 09165, Decided on December 14, 2010, Appellate Division, First Department

Dominic Bonomonte, a New York City Sanitation employee was on sick leave due to surgeries to his arm. He slipped and fell outside his home on his way to a mandated doctor's appointment at the Sanitation Department's clinic, exacerbating of his injuries.

Bonomonte sued, contending that his fall was a foreseeable consequence of the Department’s negligence in ordering him to the clinic at a time when it should have been aware that he had been directed by his physician not to travel.

Supreme Court dismissed his petition and the Appellate Division affirmed the lower court’s determination.

The Appellate Division said that “Dismissal of the complaint was warranted, since there was no duty flowing from [the Department] to [Bonomonte],” citing Matter of New York City Asbestos Litig., 5 NY3d 486.

The court explained that “Contrary to Bonomonte’s] contention, a duty was not created by the fact that [Department’s] clinical supervisor had ordered [Bonomonte] to travel to the clinic or face possible termination or suspension of employment and medical benefits.”

Further, said the court, the evidence fails to establish “proximate cause,” as the directive that Bonomonte report to the clinic merely furnished the occasion for the accident.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09165.htm

Tenure by estoppel

Tenure by estoppel
Young v Cashin, 275 AD2d 747, Motion for leave to appeal denied, 96 NY2d 706

A New York City Assistant School Principal, Joseph Young, was terminated from his position.

Contending that he had attained tenure by estoppel, Young sued, seeking a court order reinstating him to his former position. If effect, Young argued that as a tenured employee he could not be summarily terminated from his position.

The City, on the other hand, claimed that it had terminated Young while he was still a probationary employee and thus he never had attained tenure as an assistant principal. Accordingly, said the city, he was not entitled to any pretermination hearing. A State Supreme Court judge agreed with the City’s argument and dismissed Young’s petition.

The Appellate Division affirmed the lower court’s ruling, pointing out that tenure by estoppel may be acquired when a school board accepts the continued services of a probationary teacher or an administrator, and fails to take the action required by law to grant or deny tenure before the expiration of the probationary term.

The fatal omission in Young’s case, it appears, was that he failed, or was unable, to show that the City had accepted his services as an assistant principal -- i.e., he was continued in the position of assistant principal -- after his probationary term expired.

Termination during a probationary period

Termination during a probationary period
Scott v Workers’ Compensation Board, 275 AD2d 877

The Scott case demonstrates the general rule that an individual who has been permanently appointed to a position and who is required to serve a probationary period may be terminated without notice and hearing any time after he or she completes the minimum period and prior to the end of the maximum period of probation.

Michael Scott was permanently appointed as a compensation claims referee by the Workers’ Compensation Board. His appointment was subject to a probationary period ranging from 26 to 52 weeks. Prior to the completion of his probationary period, however, Scott was terminated for unsatisfactory job performance ratings in five out of seven applicable categories on his final probationary evaluation.

Scott challenged his dismissal, contending that his termination was arbitrary, capricious and motivated by bad faith. The Appellate Division sustained the dismissal of his petition, commenting that:

Absent proof that his discharge was for a constitutionally impermissible purpose, in violation of applicable law or made in bad faith, [Scott], a probationary employee, was subject to dismissal from his employment without explanation or a hearing.

Further, in the event there is a substantial question as to whether the discharge was due to reasons unrelated to work performance sufficient to justify a court considering such a petition, the individual bears the burden of proof and must present competent proof that the dismissal was motivated by an improper purpose or bad faith.


According to the ruling, Scott’s allegation of bad faith was defeated by the Board’s showing that it complied with its obligation to periodically advise Scott of his progress after observing his conduct and to ultimately provide him with a written probation evaluation at least two weeks prior to the completion of the probationary period, as well as written notice at least one week prior to the effective date of his discharge.

Further, the court ruled, more favorable progress reports that Scott received prior to the final unfavorable evaluation were not required to be furnished to him in writing and did not raise a sufficient factual issue as to the allegations of bad faith on the part of the Board.

On the merits of Scott’s allegations, the Appellate Division found that his termination was not motivated by bad faith on the basis of (1) his final probationary evaluation and (2) the affidavits submitted by the Board to the court indicating his inadequate understanding of the Workers’ Compensation Law, (3) his failure to respond to additional training to address this deficiency, (4) his improper conduct in requesting transportation from attorneys and (4) his posing inappropriate questions to a witness.

However, there may be other factors that could affect the rights of a probationary employee.

In Gordon v Town of Queensbury, 256 AD2d 784, the Appellate Division held that the probationary rules set out in a collective bargaining agreement trumped the probationary rules set in the regulations of the responsible civil service commission.

The court rejected Michael Gordon’s claim that his termination by the Town of Queensbury before he completed his probationary period was made in bad faith because the Town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission.

The court said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining representative, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Warren County Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.

In contrast to probationary periods flowing from appointment to a position, an individual may be given a disciplinary probation in connection with the resolution of a disciplinary action initiated pursuant to a collective bargaining agreement.

While such a probationary period may be general in nature, i.e., the individual is treated as a new employee for the purposes of probation, sometimes there are specific elements of conduct set out in the disciplinary award as to the terms and conditions of the probationary period. Such terms and conditions are controlling, as is demonstrated by in the Taylor ruling by the Appellate Division.

Taylor v Cass, 505 N.Y.S.2d 929, is an example of the impact of such terms and conditions set out in a disciplinary probation award and the limitations placed on the discretion of the appointing authority to terminated an individual serving a disciplinary probation. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed during his disciplinary probation period.

According to the ruling, under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was adversely affected by his intoxication on the job during the next six months.

Taylor, however, was subsequently terminated without a hearing for failing to give a fair day’s work and sleeping during scheduled working hours. Nothing was said as to his being intoxicated on the job with respect to his dismissal as a probationary employee.

Taylor sued, challenging his dismissal. He won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

Workers’ compensation leave

Workers’ compensation leave
Sanders v NYC Human Resources Administration, 275 AD2d 873

Lavern Sanders, a probationary employee, filed an application for workers’ compensation benefits. She also asked for a leave of absence, based upon a physician’s note directing her to cease working. Eventually her leave request was approved through September 1992.

On September 8, 1992, Human Resources sent Sanders a letter advising her that her leave of absence had expired on September 8, 1992 and that any absence subsequent to that date was unauthorized. Another letter advised her that the city had decided to controvert her workers’ compensation claim. In effect, the city said that it did not believe that Sanders had been injured while performing her duties.

According to the decision, Sanders never received these letters because they had been returned to the city as unclaimed “due to the failure to specify [Sanders’] complete address on the envelopes.” Finally, on December 2, 1992, Sanders found out that she had been terminated by the city.*

However, when Sanders learned that the city had controverted her claim for workers’ compensation benefits, she appealed to the Workers’ Compensation Board. Her complaint: she had been terminated as retaliation for her having filed a workers’ compensation claim. Terminating an individual because he or she had filed a workers’ compensation claim, she argued, violated Section 120 of the Workers’ Compensation Law.

As evidence of such retaliation, Sanders alleged that her employer began fabricating disciplinary charges against her immediately following her application for [workers’ compensation] benefits.

Ultimately the Workers’ Compensation Board decided that Sanders failed to sustain her burden of demonstrating a prima facie case of discrimination and dismissed her complaint. The Appellate Division affirmed the Board’s determination.

As to approving other leave for Sanders, the decision states that a union official’s testimony indicated that the city generally does not authorize leaves of absences for probationary employees and will terminate any such employee who is on unauthorized leave so that a replacement may be hired to fill the position. Presumably, the testimony concerning the city’s not authorizing leave in such cases refers to a leave without pay such as leave pursuant to Section 72 of the Civil Service Law.

While Section 71 leave must be approved for employees injured on the job in situations where the injury or disability does not permanently incapacitate the individual from performing the duties of the position, Section 72 authorizes the approval of leaves without pay in the event the individual’s disability is not work-connected.

* Presumably Sanders was not placed [or continued] on workers’ compensation leave as mandated by Section 71 of the Civil Service Law in view of the city’s controverting her claim that she had suffered a work-related injury.

Dismissal of charges in the course of a Section 75 disciplinary hearing

Dismissal of charges in the course of a Section 75 disciplinary hearing
Source: Reader's inquiry

From time to time, a reader will submit a question concerning a public personnel law issue. One recent question viewed as being of general interest to the readers of this BLOG:

"Where is the authority to dismiss administrative disciplinary charges during the hearing process found?"

NYPPL does not believe that a hearing officer has any authority to "dismiss" a Section 75 disciplinary charge or specification.*

Although the appointing authority may elect to "withdraw" a charge or specification, we know of no such authority being vested in a Section 75 hearing officer unless the appointing authority, itself, is serving as the hearing officer or body and so acts.

The authority of a hearing officer is limited in the context of a Section 75 disciplinary action. The hearing officer may either sustain some or all of the charges and specifications served on the employee or find that there was no substantial evidence to prove all or some of the charges and specifications so served.

As to the actual act of dismissing charges, as a practical matter the hearing officer would simply make findings to the effect that the appointing authority has not sustained its burden of proof and recommend that the charges be withdraw or dismissed, with or without prejudice, at the discretion of the hearing officer or find the employee "not guilty" of the charge[s].

As the doctrine of "double jeopardy" does not apply in administrative disciplinary actions, unless the appointing authority elects to dismiss the disciplinary charges "with prejudice," it may subsequently file charges based on the same event[s] on the employee.

* In contrast, an arbitrator or arbitration panel may grant a motion to dismiss charges and specifications where the final determination is to be made by the arbitrator or an arbitration panel as is the case in a disciplinary proceeding held pursuant to Education Law Section 3020-a. Any challenge to such action would be via an appeal pursuant to CPLR Article 75 by the appointing authority to vacate the award, in whole or in part.