Reduction of an employees’ hours and compensation not always equal to the abolishment of a position for the purposes of §80 of the Civil Service Law

Reduction of an employees’ hours and compensation not always equal to the abolishment of a position for the purposes of §80 of the Civil Service Law
Matter of Schoonmaker v Capital Region Bd. of Coop. Educ. Servs., 2011 NY Slip Op 00142, Appellate Division, Third Department

Karen Schoonmaker was employed full time as a Senior Keyboard Specialist by Capital Region Board of Cooperative Educational Services (BOCES). When Schoonmaker division's workload was reduced, BOCES reduced her hours to 75% of full time and her wages was decreased correspondingly.

Alleging that BOCES violated her rights under Civil Service Law §80 by reducing her hours and salary but not reducing the hours of Senior Keyboard Specialists with less seniority, Schoonmaker sued. Holding that BOCES did not violate the statute, Supreme Court dismissed her petition and the Appellate Division sustained the lower court’s determination.

The Appellate Division explained that BOCES did not violate Civil Service Law §80 when it reduced Schoonmaker’s hours, despite her seniority. The issue a question of pure statutory interpretation and as the statutory text is unambiguous, the court was required to give "effect to its plain meaning."

§80 of the Civil Service Law, entitled "[s]uspension or demotion," provides that "[w]here, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion . . . among incumbents [in the same governmental jurisdiction] holding the same or similar positions shall be made in the inverse order of original appointment."

As Schoonmaker’s hours were reduced due to economy, abolition of functions or curtailment of activities, the question becomes whether the reduction in hours and corresponding effect on Schoonmaker’s overall income equate to her position being "abolished or reduced in rank or salary grade."

The Appellate Division held that in this instance the answer was no.

The court explained that while conversion of a full-time position to part time has been considered as an abolition of the full-time position, citing Linney v City of Plattsburgh, 49 AD3d 1020, the local civil service rules in Albany County — which apply to BOCES employees — define part-time employment as a person working 50% or less or earning not more than half of the rate assigned if the position was allocated to a graded salary schedule.

Under those rules, said the court, Schoonmaker’s position remained full time and was not converted to a part-time position. Hence, concluded the court, her "full-time position" had not been abolished.

Also noted by the court that “Had the Legislature intended to require that governmental employers suspend or demote employees in the inverse order of appointment when a position was "abolished or reduced in rank[,] salary grade" or hours, those additional words could have been included in the statute.”

However, when the Legislature attempted to add to the statute by requiring inverse-seniority demotion or suspension when an employer reduced its employees' work hours, the Governor vetoed the bill (see 2003 NY Assembly Bill 8399).

Rejecting Schoonmaker’s policy arguments that its decision will create a slippery slope, allowing governmental entities to reduce a senior employee's hours as punishment or to benefit favored less-senior employees, the Appellate Division pointed out that public employees in New York “are currently protected by the law and may bring an action against an employer if they suffer adverse employment actions based upon decisions rendered in bad faith.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00142.htm

Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law

Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law
Matter of Witkowich v SUNY Alfred State Coll. of Ceramics, 2011 NY Slip Op 00454, Appellate Division, Third Department

Three months after Kenneth Witkowich began serving as the Chief of University Police for Alfred State College he was terminated. A day later, he filed an application for workers' compensation benefits, claiming that in the days immediately prior to his termination he had suffered a "recurrence of posttraumatic stress disorder, [irritable bowel syndrome and] anxiety" — or, a panic attack. He subsequently filed a second claim, alleging that the manner in which he was informed of his termination exacerbated his preexisting psychological conditions.

A Workers' Compensation Law Judge [WCLJ] denied both applications, concluding that Workers' Compensation Law §2(7) barred them. A Workers' Compensation Board panel affirmed that decision, finding that Witkowich’s injuries were not compensable.

In deciding the merits of Witkowich’s appeal, the Appellate Division said that a mental injury, even if job related, is not compensable if it is "a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer," citing Workers' Compensation Law §2[7].

Addressing Witkowich’s claim that the stress he encountered as Chief of Police prompted an exacerbation of a preexisting mental condition that, in turn, caused him to have a panic attack, the Appellate Division said that such a claim will not "be sustained absent a showing that the stress experienced by the affected claimant was greater than that which other similarly situated workers experienced in the normal work environment."

The court noted that no evidence was introduced at the workers’ compensation hearings that Witkowich’s position as Chief of Police was extraordinarily stressful or that the injuries he claimed to have sustained were caused by conditions that existed in the work place.

The Appellate Division dismissed Witkowich’s challenge to the Board’s determination.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00454.htm

Passing an examination does not give an eligible a right to demand that he or she be appointed from the eligible list

Passing an examination does not give an eligible a right to demand that he or she be appointed from the eligible list
Paolini v Nassau County, Supreme Court, Justice Winick, [Not selected for publication in the Official Reports]

The fact that an individual passes an examination does not give him or her any right to demand that he or she be appointed from the eligible list. The Paolini case involved such a demand, however.

A number of individuals serving as Social Welfare Examiner I with the Nassau County Department of Social Services had taken and passed the competitive promotion examination for Social Welfare Examiner II, Examination Number 71-299. Although the list had been established effective May 13, 1996, no appointments had been made from it.

The list had been extended in 1997, and again in 1998 and in 1999. However, it was due to expire in accordance with the provisions of Section 56(1) of the Civil Service Law. Section 56(1), subject to certain exceptions not relevant in this case, provides that the maximum life of an eligible list is four years from the date of promulgation.

Although Paolini did not claim that the Commissioner of the Department of Social Welfare took any steps to promote anyone on the eligible list, nor that any funds were approved to pay for promotions, he asked to the court to:

1. Extend the eligible list beyond May 13, 2000; and

2. Order the department to promote each petitioner to the position of Social Welfare Examiner II from the eligible list number 71-299 and pay them retroactive to the date on which they each first became eligible for promotion to date, with interest.

Paolini contended that a November 17, 1992 decision by State Supreme Court Justice Lockman -- Livingston v Nassau County Civil Service Commission, [Index 14457-92, not selected for publication in the Official Reports] -- was a precedent for this relief.

In Livingston the employer, the Fire Commission, met on September 5, 1991 and actually made a number of promotions from the eligible list. The minutes of the meeting indicated the appointments were approved. In addition, the salaries for these appointments were included in the County budget but the paperwork had not been processed because of a fiscal crisis. Judge Lockman ruled that the paperwork was a ministerial act, and directed that Livingston be compensated at the higher salaries retroactive to September 5, 1991.

Such was not the case with respect to any claimed action to promote the Paolini plaintiffs to a higher-grade position. Paolini conceded that the Department took no steps to effectuate the promotions nor was there any evidence of any communication to the County Executive or approval of the legislative body to make any such appointment.

Holding that the facts in Paolini were clearly distinguishable from the facts in the Livingston case, the court said that [o]ther than holding the test, no steps had been taken to promote anyone to Social Welfare Examiner II.

Finally, the court said that there is no proof that any monies were appropriated for higher salaries or that the higher-grade positions were budgeted at the time the Paolini plaintiffs passed the Civil Service test, as was the case in Livingston.

Accordingly, said the court, here there was more than a ministerial act required to effectuate the promotions -- and such required actions were not shown to have been taken by the county.

The court dismissed Paolini’s petition, noting a number of other procedural defects that otherwise would bar its granting any relief in this case.

1. There was no prior determination by an administrative body, a prerequisite for bringing an Article 78 proceeding. The administrative remedies must be exhausted with a final determination for the court to review.

2. This was no decision by the Civil Service Commission to review and it is not within the court’s power to usurp the ability of an administrative agency to make such determinations.

3. There was no Notice of Claim filed with the county as required by Section 58-e of the General Municipal Law.

When seeking relief in the nature of mandamus, the individual must make the demand and await the agency’s refusal before filing an Article 78 petition

When seeking relief in the nature of mandamus, the individual must make the demand and await the agency’s refusal before filing an Article 78 petition
Donoghue v New York City Dept. of Educ., 2011 NY Slip Op 00425, Appellate Division, First Department

Dismissing an Article 78 petition seeking one form of relief does not necessarily mean that that portion of the petition seeking other relief must be dismissed as well.

Janice A. Donoghue, a teacher employed by the New York City Department of Education, asked to be granted tenure as an earth science teacher as of September 1, 2005. When the New York City Department of Education failed to act, Donoghue filed an Article 78 petition. Although Supreme Court granted the Department’s motion to dismiss her petition, the Appellate Division reversed the lower court ruling “on the law and in the exercise of discretion.” And reinstated the petition.

Nor, said the court, is Donoghue’s appeal “moot,” since Donoghue has not obtained all of the relief she sought.

The Appellate Division explained that an Article 78 is not limited to review of administrative determinations since a court also has subject matter jurisdiction to review a body's or officer's failure to act.

The decision indicates that although Donoghue had asked the Department to retroactively grant her tenure in earth science, the Department had failed to act on her request.

Addressing the question “Is Donoghue’s action barred by the statute of limitations?”-- the Appellate Division said that Donoghue’s Article 78 petition was in the nature of a prayer for “mandamus relief.”

In such an action the petitioner is required to make a demand and await a refusal before the matter is ripe for possible litigation. Significantly, statute of limitations does not commence to run “until the refusal" is served on the individual or his or her attorney.*

Thus, said the court, “[i]f there is no refusal, the limitations period does not begin to run.”

Considering another procedural issue, the Appellate Division noted that Donohue’s request was not made within the four-months required. However the court, in an “exercise” of its discretion determined that the proceeding was not barred by laches because "[i]f a petition and answer ‘can be construed as the necessary demand and refusal’ [Donoghue’s] pre-petition demand should not be deemed untimely.”

* As a general rule, when an individual is represented by an attorney, delivery of the papers to the attorney is viewed as service on the individual. In such situations the attorney is deemed the individual's agent [see Bianca v Frank, 43 NY2d 168].

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00425.htm

Firefighter’s status as an employee determines that Workers’ Compensation Law rather than Volunteer Firefighters’ Benefits Law benefits are to be paid

Firefighter’s status as an employee determines that Workers’ Compensation Law rather than Volunteer Firefighters’ Benefits Law benefits are to be paid
Matter of Falkouski v City of Rensselaer Fire Dept., 2011 NY Slip Op 00446, Appellate Division, Third Department

A City of Rensselaer part-time paid assistant fire chief also served as a member of a City of Rensselaer volunteer fire company. He died after suffering a ruptured cerebral aneurysm while at a fire.

His surviving spouse, Susan Falkouski, filed claims under both the Workers' Compensation Law and the Volunteer Firefighters' Benefit Law.



Although a Workers' Compensation Law Judge found that the fassistant cheif’s death was causally related to his volunteer firefighter duties, the Workers' Compensation Board reversed, finding that he had died while working in his capacity as an assistant fire chief.

Accordingly the Board ruled that the Workers' Compensation Law, rather than the Volunteer Firefighters’ Benefit Law, controlled insofar as Mrs. Falkouski’s claims for benefits were concerned.

Mrs. Falkouski’s late husband, as an assistant fire chief, received biweekly pay and took on responsibilities beyond those of a volunteer firefighter such as carrying a City-supplied pager and he was obligated to respond to all fires. Further, said the court, “there was evidence that his duties as assistant fire chief required him to supervise volunteer fire companies responding to the scene of a fire, he wore a different color hat indicating his supervisory role and he was acting in such capacity at the time of the subject fire.”

Under these circumstances, the Appellate Division sustained the Board’s determination, ruling that substantial evidence supports the Board's determination that, at the time of his death, Mrs. Falkouski’s late husband was engaged in work as an employee in his paid position as an assistant fire chief.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00446.htm