If an educator employed by the NYC BOE asks to withdraws his or her resignation, the request shall be granted subject to the Chancellors approval

If an educator employed by the NYC BOE asks to withdraws his or her resignation, the request shall be granted subject to the Chancellors approval
Matter of Mendez v New York City Dept. of Educ., 2011 NY Slip Op 50067(U), Supreme Court, New York County, Judge Jane S. Solomon [Not selected for publication in the Official Reports]

Mildred Mendez challenged the New York City Department of Education's ("DOE") denial of her request to withdraw her letter of resignation and asked the court to issue an order compelling the DOE to accept her withdrawal, to reinstate her as a teacher, and to provide back pay.

Supreme Court Judge Jane S. Solomon granted Mendez’s motion in its entirety.

The issue presented, said the court, is whether the New York City Department of Education [DOE] acted in accordance with the Education Law and its own governing rules (as authorized pursuant to Education Law §2590-g). In the words of Judge Solomon was DOE “authorized to treat with Mendez as a resigned teacher under the circumstances presented.”

The court said that if DOE never accepted a resignation from Mendez, or if she validly withdrew her resignation, the DOE, as a matter of law, was not authorized to treat her as a resigned teacher and she must be reinstated.

Significantly, said Judge Solomon, NYC Chancellor's Regulation 205(29) states, “in mandatory language,” that a teacher’s request to withdraw his or her resignation "shall be granted" subject to the Chancellor's approval.

According to the decision, DOE told Mendez that "Based on the resignation letter submitted to our Human Resources Office on June 24, 2008, you are no longer a reassigned employee.” The court noted that DOE’s letter did not note that an “administrative determination” had been made by the Chancellor regarding her withdrawal of her resignation.

In this instance the court found that the Chancellor took no action. In other words, the Chancellor did not determine that her withdrawal request should be dishonored within the meaning of Chancellor's Regulation 205.

Judge Solomon, granting Mendez’s petition, ordered DOE to reinstate “Mendez to her teaching position, with back pay and all other economic benefits of employment from August 28, 2008.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50067.htm

Completed school district audits

Completed school district audits
Source: The Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced his office has completed audits of the school districts listed below.

Click on the school name to access the Comptroller's audit report.

Beekmantown Central School District,

Clarkstown Central School District,

Geneva City School District,

Homer Central School District,

Riverhead Central School District and

Taconic Hills Central School District.

Arbitrating health insurance claims

Arbitrating health insurance claims
Correction Officers Benevolent Asso. v Westchester County, Supreme Court, Westchester County, [Not selected for publication in the Official Reports]

Not every grievance concerning health insurance benefits provided pursuant to a collective bargaining agreement is subject to the contract arbitration provisions set out in the Taylor Law contract as the Correction Officers Benevolent Association case demonstrates.

The collective bargaining agreement [CBA] between the Correction Officers Benevolent Association [COBA] and Westchester County provided for the arbitration of contract disputes.

The county’s self-insured health plan, administered by a third party, POMCO, included an appeal procedure allowing COBA members to challenge the denial of a claim.

CBA disputes were subject to binding arbitration. In contrast, the denial of a health insurance claim could be appealed to the plan administrator and, if the individual was not satisfied, he or she could sue in court.

The health insurance plan’s procedure, however, provided that [n]o lawsuit may be started to obtain benefits until after 60 days after written proof of claim or loss is given. No lawsuit may be started more than two years after the time written proof of loss or claim is required to be given and a claims appeal has been requested.

A claim for benefits filed by a COBA member was denied, as was his appeal to the plan administrator. He then sued the county and POMCO.

The employee’s claim for coverage for immunization for chicken pox for his three children under a Well Child Care provision was denied as not covered by the Plan.

Westchester, claiming that the employee had not exhausted his administrative remedies because he failed to file a grievance under the contract grievance procedure, asked a State Supreme Court justice to dismiss the petition.

Justice J. Emmett Murphy denied Westchester’s motion, summarizing the relevant case law as follows:

1. In cases where the collective bargaining agreement contains a broad arbitration agreement which provides that any alleged violation of the Agreement or any dispute with respect to its meaning or application was arbitrable and ... provisions relating to health insurance benefits and a percentage breakdown for premium costs allocable to the parties ... [or] a dispute regarding a substantive change in the health insurance plan, resulting in either an increase in the employee’s contributions and/or a reduction in benefits was arbitrable as an alleged violation of employee’s obligations under the CBA, citing Matter of Watertown City School District, 93 NY2d 132.

2. The fact the changes to the health plan were made by an entity that is not a party to the CBA is not determinative of whether the grievance/dispute is arbitrable.

Here, said Justice Murphy, there was no change in the benefits nor was there any change in the contributions to be made for the plan by participants. Rather, the issue concerned the rejection of a claim for certain medical procedures by the Plan Administrator. The employee claimed he should receive the benefit while the Plan administrator said the benefit demanded was not available to the employee under the Plan.

If the employee’s claim concerned a dispute involving a change to the health plan that would increase an employee’s contributions or reduce benefits, it would constitute an arbitrable issue as to whether or not the County breached its promise in the CBA to retain the current insurance plan.

In contrast, here the disputed did not involve any claim of a substantive change in the existing health plan’s benefits or employee contributions to the plan but, rather, concerned whether a certain service administered by a participating provider is covered within the meaning of the terms of the current health plan, which have not been altered by the County.

This, according to the court, was simply not an issue that was subject to contract arbitration. In other words, the Plan administrator’s determination did not affect any of the terms and conditions set out in the CAB.

The court said that the county’s position that arbitration under the CBA was required is belied by the fact the Plan provides its own dispute resolution mechanism for claims of this nature, i.e., an internal appeal and, thereafter, the commencement by an aggrieved enrollee of the lawsuit to he governed by the laws of New York.

Justice Murphy’s conclusion:

The CBA’s grievance procedure, culminating in arbitration, is not applicable to the dispute that is the subject of this litigation and the Plan itself sets out the procedures available to an individual to resolve disputes concerning the denial of a claimed benefit or coverage.

The county also argued that the issue was subject to PERB’s jurisdiction and the court should dismiss the action and defer to PERB. Justice Murphy disagreed, holding that the case does not involve a refusal to negotiate medical coverage to which a corrections officer is entitled.

Clearly PERB has jurisdiction in cases involving alleged improper labor practices. Here, however, there was no allegation that Westchester violated its agreement with an employee association, which would constitute an improper employee practice under the Taylor Law.

The issue involved the interpretation or the enforcement of a provision in the health insurance plan. In Matter of Kinsella [198 AD2d 824], the Appellate Division said that PERB does not have jurisdiction to resolve such issues or authority to enforce the provisions of a collective bargaining agreement.

Justice Murphy said that the dispute over whether or not a chicken pox vaccine is a covered service involves no improper employer practice, but is merely a question of the meaning and enforcement of the Plan and, thus, is outside the scope of PERB’s jurisdiction.

Essentially the court held that because the plan itself provided for a procedure for resolving disputes concerning the plan, that procedure had to be followed in this instance.

Relying on hearsay evidence in administrative hearings depends on the creditability of the witness.

Relying on hearsay evidence in administrative hearings depends on the creditability of the witness.
Saunders v City of New York, 273 AD2d 103, Motion for leave to appeal denied, 95 NY2d 766

New York City police officer Brian Saunders was terminated from his position after being found guilty of having assaulted and caused physical injuries to two former girlfriends.

Sauders appealed, contending that the Commissioner’s determination was not supported by substantial evidence because it was based on hearsay. The Appellate Division disagreed, holding that [t]he hearsay statements of the complainants were sufficiently probative to constitute substantial evidence.

According to the decision [h]earsay may constitute substantial evidence where, as here, it is sufficiently reliable and probative on the issues to be determined. This, in turn, depends on the credibility of the witnesses. The issue of the credibility of the witnesses at Sauders’ departmental disciplinary hearing, said the court, was a matter to be assessed by the Deputy Commissioner who presided at the trial.

Accordingly, said the court, determinations concerning the credibility of witnesses is largely beyond our power of review.

Successor union’s liability

Successor union’s liability
Parker v Metropolitan Trans. Authority, USDC, SDNY, [Justice Colleen McMahon]

Donald Parker, a police officer with the Metro-North Commuter Railroad (Metro-North), sued the Metropolitan Transportation Authority, Metro-North, the Metropolitan Transportation Authority Police Benevolent Association [MTA-PBA], the Metro-North Police Benevolent Association, and the Railroad Police Benevolent Association, claiming each had discriminated against him because of his age and disability.

Parker alleged that he was not promoted to sergeant by Metro-North and it removed his name from an internal sergeant promotion list because of discriminatory animus against him. Metro North said it removed Parker’s name from the list in accordance with the terms of the collective bargaining agreement.

Parker was 58 years of age when he took and passed the written examination for sergeant. Assigned to Poughkeepsie, Parker underwent by-pass heart surgery. When he returned to duty, he was temporarily reassigned to light duty in Yonkers.

In December 1991, while on light duty at Yonkers, Parker was offered a sergeant’s position in Grand Central Terminal, some 80 miles from his work site in Poughkeepsie but less than 30 miles from Yonkers. Under the collective bargaining agreement [CBA], an officer could decline a promotion without losing his or her seniority or standing on the promotion list if the reporting point for the new position is located more than 30 miles from the officer’s present reporting point. Parker declined the New York City promotion offer and Metro-North removed his name from the promotion list.*

One of the issues addressed by Judge Colleen McMahon was MTA-PBA’s motion for summary judgment dismissing it from the lawsuit. MTA-PBA pointed out that it was the successor union, and had not negotiated the CBA in question.

MTA-PBA was a separate labor organization from the Metro-North PBA. On January 1, 1998, the Metro-North and Long Island Railroad Police Departments were disbanded and replaced by the MTA Police Department. Subsequently PERB recognized MTA-PBA as the exclusive bargaining agent for MTA police officers including those employed by Metro-North.

MTA-PBA’s basic argument: because the events underlying the alleged acts of unlawful discrimination took place before the MTA-PBA was designated the bargaining agent, MTA-PBA could not have been a participant in any discrimination against [Parker], and thus, cannot be liable.

May MTA-PBA be held responsible for unlawful discrimination on the basis of its status as the successor union and thus subject to liability if Parker proves his charges? Judge McMahon said that said that [t]he little case law that appears to exist on the issue indicates that successor labor organizations may be held liable for the discriminatory acts of their predecessors, according to the same factors used to determine successor liability of corporations, citing an earlier Southern District ruling, EEOC v Local 638, 700 F. Supp. 739. In holding that a successor union could be liable under Title VII for the acts of its predecessor, Judge McMahon said that the Local 638 court considered four elements:

1. The relationship between the predecessor and successor (for example, whether the successor was formed by a merger of the predecessor);

2. Whether substantial continuity of assets and employees existed between the predecessor and successor;

3. Whether the successor had notice of the liabilities and obligations of the predecessor; and

4. The importance of the federal policies at stake.

Here, said Judge McMahon, MTA-PBA did not adequately address any of these factors, but simply argued, in conclusory fashion, that because the MTA-PBA did not come into existence until after [the actions taken by its predecessor were taken] it cannot be liable for any discrimination by the Metro-North PBA [resulting from such actions]. In view of this omission, said the court, that MTA-PBA was not entitled to summary judgment with respect to the claims against the MTA PBA.

The union president, Robert Novy, was also a named defendant. However, as the court said, individual defendants may not be liable under ADEA ... the same rule applies under ADA....

* The collective bargaining agreement also contained a non-discrimination clause that stated that there will be no discrimination against any officers because of race, color, creed, national origin or sex, but did not include any provision specifically prohibiting age or disability discrimination.