Discharge of older worker, but not younger worker with whom he fought, upheld; discharge due to history of altercations, not age bias

Discharge of older worker, but not younger worker with whom he fought, upheld; discharge due to history of altercations, not age bias
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

The 7th Circuit recently held that the lower court properly granted judgment as a matter of law on the age discrimination claim of a plant employee who was fired after several heated disputes with his coworkers.Runyon v Applied Extrusion Techs, Inc, ____F.3d____(7th Cir. August 30, 2010).

Although a younger coworker who was involved in an altercation with the employee was not fired, the Seventh agreed with the district court that there was no evidence the employer’s action was motivated by age.

Mitchell H. Rubinstein

Name clearing hearings

Name clearing hearings
Ortiz v Ward, 546 NY2d 624

The Appellate Division, 1st Department, was asked to consider the issue of the right of a probationer discharged after the employer determines that he or she has not satisfactorily completed his or her probationary period to either (1) a "pre-termination hearing" before being discharged or (2) a “name-clearing hearing" following his or her termination.

As to the right to a "pre-termination hearing," the Court said that a probationary employee could be discharged without a hearing so long as the termination was made in good faith. However, it appears that the employer may be called upon to demonstrate that the dismissal was made in good faith by providing some evidence to support its decision to terminate the probationer.

In this case the Appellate Division said that "the evidence in this record supports the conclusion that [Ortiz] was discharged for good reason and, accordingly, no hearing was necessary before terminating [Ortiz'] employment."

Although it is frequently said that a probationer may be terminated from his or her employment at any time after completing the minimum probationary period and before the end of the maximum period of probation without any reason being required to be given for the discharge, if the termination is challenged the employer will probably have to disclose the underlying reason or reasons for the firing. Further, these judgments by the employer will have satisfy the court with respect to their being reasonable and made in good faith.

If, on the other hand, the employer wishes to terminate the probationer before he or she has completed the minimum probationary period required for the position, it may do so only after bringing disciplinary action against the employee and holding a disciplinary hearing or proceeding with a Taylor Law disciplinary arbitration.

In considering the need for a "name-clearing hearing," the Appellate Division noted that Ortiz was not entitled to such a hearing as he did not show that his employer had publicly disclosed the stigmatizing reasons for his discharge. Courts in the past have ruled that the internal disclosure of stigmatizing reasons for the discharge of a probationer to agency administrators did not constitute a public disclosure of such information and thus a name-clearing hearing" was not required because of such intra-agency communications.

Assistant Attorneys General ruled “policy makers” for the purposes of the First Amendment, Title VII and the ADEA

Assistant Attorneys General ruled “policy makers” for the purposes of the First Amendment, Title VII and the ADEA
Butler v NYS Dept. of Law, CA2, [Appeal from summary judgment in favor of the State, see Butler v. New York State Dep’t of Law, 998 F. Supp. 336]

Who is a policy maker? This was one of the issues before the court when former Assistant Attorney General Barbara B. Butler sued then Attorney General Dennis Vacco, contending that she had been unlawfully fired from her position as a Deputy Bureau Chief.

Was Butler was a policy maker and thus subject to dismissal for reasons of political patronage? The Court concluded that Butler was a policy maker.

In determining whether an individual is a policymaker in accordance with the Elrod [427 US at 367] and Branti [445 US 507] standards, the Second Circuit said it considers whether or not the employee:

(1) is exempt from civil service protection;

(2) has some technical competence or expertise;

(3) controls others;

(4) is authorized to speak in the name of policymakers;

(5) is perceived as a policymaker by the public;

(6) influences government programs;

(7) has contact with elected officials; and

(8) is responsive to partisan politics and political leaders.

The Circuit Court said that as Deputy Bureau Chief, Butler was not protected against a political patronage dismissal because her position fell within the policymaker exception to First Amendment protection.

Further, said the court, Butler was not protected under Title VII because her position came within the statutory exception for an appointee on the policymaking level.

Finally, Butler’s ADEA claim failed because the State’s Eleventh Amendment immunity prevented her from suing the State Department of Law for age discrimination under ADEA.

Make-up examination

Make-up examination
Alves v NYC Dept. of Citywide Administrative Services, Supreme Court, New York County, Justice Weissberg, [Not selected for publication in the Official Reports]

The New York City Department of Citywide Administrative Services [DCAS] held the written test for fire lieutenant on Saturday, September 27, 1997. 3,627 firefighters took the test. Those unable to take the test on the 27th could take a special test if the reason why they could not appear is on an enumerated list, which includes religious observances and military duties.

A special examination was taken by two firefighters who were Sabbath observers on Friday, September 26. On October 8, 1997, a make-up examination was administered to thirteen firefighters who were unable to appear on September 27. The questions on all three tests were the same, but the order in which they were presented was different.

On October 7, 1997, DCAS received an anonymous complaint alleging that a copy of the September 27 examination was seen in a Brooklyn firehouse on the evening of September 26 and that copies of the examination were, after September 27, seen in firehouses throughout the City. The October 8 make-up test was held as scheduled.

The City’s Department of Investigation (DOI) investigated the alleged breach in the integrity of the test. It found that that copies of the September 27 examination were widely available between September 27 and October 8; that many of the firefighters who took the October 8 examination admitted that they had seen a copy of the September 27 examination and discussed it with other firefighters before they took their test. DOI also reported that the test scores for the applicants who took the October 8 examination were higher than the scores for those who took the September 27 test. DOI concluded that the integrity of the October 8 make-up examination had been compromised and recommended that the results of that examination be nullified. DOI also concluded that there was no evidence that the integrity of the September 27 examination had been compromised.

Based on these DOI findings and conclusions, DCAS nullified the results of the October 8 examination. Four of the candidates who took the October 8 make-up test sued, contending that never saw a copy of the September 27 examination or discussed the questions on the examination prior to taking the October 8 make-up exam. They also contended that there was no specific finding that any individual petitioner cheated on the examination or otherwise engaged in fraud or deception.

The decision notes that one applicant, John Spillane, who was on military duty on September 27 was appointed as a provisional Fire Lieutenant on the basis of his test score as part of the settlement of a complaint he filed with the United States Department of Labor.

After properly nullifying the October 8 examination, DCAS decided that a second, separate make-up examination was impracticable because of the time and effort necessary to prepare and administer such a test and only 13 candidates were affected. It decided that the make-up for the October 8 examination would be the next scheduled general test for promotion to Lieutenant which, as petitioners point out, will likely not be conducted until at least the year 2001,

Justice Franklin R. Weissberg was not impressed by this and ruled that [i]n view of the fact that the respondents have conceded that the petitioners did not engage in any acts of misconduct, they should offer a viable and fair alternative thereto, such as they did for Mr. Spillane in agreeing to use his scores from the October 8 examination [to qualify him for provisional promotion] until ... the next scheduled examination....

Representation and indemnification of a public employee being sued

Representation and indemnification of a public employee being sued
Ganzman v Hess, App. Div., 273 A.D.2d 352

Defending a public employee who is being sued as a result of some act or omission in the performance of his or her official duties is an important benefit. When Joel Ganzman, the Deputy Public Administrator of the Office of the Public Administrator of Kings County [Office] was named as a defendant in a Federal discrimination suit, [Gryga v Ganzman, Docket No. 97 Civ 3929, USDC, EDNY], he asked Michael D. Hess, Corporation Counsel of the City of New York and the City of New York, to defend him and, if necessary, indemnify him if he was held liable for damages. Hess rejected Ganzman’s request on the ground that he was not a City employee.

Ganzman sued and won a court order by a State Supreme Court Justice requiring Hess, and the City of New York, to defend and indemnify him should the need arise.

Hess appealed. The Appellate Division affirmed the result, but for a different reason. It said that it is undisputed that the expenses of the Office are funded at least in part by the City. Accordingly, said the court, the Office is an agency of the City as defined by General Municipal Law Section 50-k(1)(a). Since Ganzman holds a position in the Office, he is an employee as defined by GML Section 50-k(1)( e). Conclusion: he is entitled to the defense available to any employee under GML Section 50-k(2).