Administrative law judge denies employee’s attempt to convert a disciplinary hearing into a “disability proceeding”

Administrative law judge denies employee’s attempt to convert a disciplinary hearing into a “disability proceeding”
NYC Human Resources Administration v Krisilas, OATH Index #931/11

A clerical associate was charged with sleeping on duty, absence without leave, excessive lateness, and discourtesy to a supervisor. The employee’s attorney moved to dismiss the disciplinary charges and convert the matter to a disability proceeding, claiming his client suffered from a disability.

OATH Administrative Law Judge Ingrid Addison denied the motion, ruling that an employer's duty to accommodate an employee's disability is triggered by the employee's request for accommodation and is limited to disabilities known by the employer.

Here, said Judge Addison, the employee never told the agency he suffered from a disability for which he needed accommodation. Nor, said the judge, did the evidence establish that the employee's misconduct was caused by a disability.

The ALJ held that the disciplinary charges were proven in the course of the disciplinary hearing and recommended that the individual be terminated from his position.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-931.pdf
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State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State’s Public Employee OSHA regulations

State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State’s Public Employee OSHA regulations
Source: New York State Register, March 2, 2011

On March 2, 2011 the State Register published a notice that the State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State Public Employee Occupational Safety and Health Standards by amending its regulations. [See 12 NYCRR §800.3.]

The Department states that the amendment is necessary because Section 27-a(4)(a) of the Labor Law directs the Commissioner to adopt by rule, for the protection of the safety and health of public employees, all safety and health standards promulgated under the U.S. Occupational Safety and Health Act of 1970, and to promulgate and repeal such rules and regulations as may be necessary to conform to the standards established pursuant to that Act. This, says the Department, insures that public employees will be afforded the same safeguards in their workplaces as are granted to employees in the private sector.

The text of proposed rule and any required statements and analyses may be obtained from Michael Paglialonga, New York State Department of Labor, State Office Campus, Building 12, Room 509, Albany, NY 12240, (518) 457-1938, email: michael.paglialonga@labor.ny.gov

Data, views or arguments may be submitted to Mr. Paglialonga.

Public comment will be received until 45 days after publication of this notice.
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Settling a disciplinary action by agreeing to disciplinary probation

Settling a disciplinary action by agreeing to disciplinary probation
Matter of Campbell v State of New York, 37 AD3d 993

The New York State Office of Mental Health [OMH] filed disciplinary charges against Monica A. Campbell. Instead of proceeding with a disciplinary hearing, Campbell and her union, New York State Correctional Officers and Police Benevolent Association [PBA] “settled” the matter by agreeing to have Campbell serve a “one-year disciplinary probationary period.”

The settlement agreement provided that:

Should Ms. Campbell commit any actions or omissions during this one-year period “which rise to the level of misconduct and/or incompetence” she will be terminated from [s]tate service without recourse to Article 8 [of the collective bargaining agreement].

The disciplinary grievance procedure set out in Article 8 provided for arbitration as the final step in a disciplinary action.

Ultimately OMH determined that Campbell was guilty misconduct while in “disciplinary probationary status” and terminated her employment. PBA appealed her termination and demanded arbitration. OMH refused to submit its decision to terminate Campbell to arbitration, contending that arbitration was not available under the terms of the disciplinary settlement agreement. PBA filed a petition pursuant to CPLR Section 7503 seeking a court order compelling arbitration.

Supreme Court found that the disciplinary settlement agreement did not exclude arbitration of the question of whether Campbell was guilty of misconduct and ordered arbitration. OMH appealed.

As the Appellate Division’s decision notes, it is well settled that a right to arbitration, like contract rights generally, may be waived or abandoned. The issue here, said the court, was whether the disciplinary settlement agreement entered into by the parties constituted a waiver of PBA’s right to submit Campbell’s dismissal to arbitration.

According to the record, the settlement agreement initially made Campbell a probationary employee for one year. This language, however, was amended at the request of PBA’s attorney and the phrase “disciplinary evaluation period” [DEP] was substituted in its place in order to “avoid impairment of Campbell's seniority and layoff rights.”

Noting that paragraph 9 of the PBA’s petition seeking to compel arbitration itself confirm that the parties understood that the DEP would be a probationary period, the Appellate Division said that “This clear meaning and understanding of the parties is in complete harmony with the meaning and use of DEPs in similar reported cases,” citing Matter of Miller v Coughlin, 59 NY2d 490, 493; and Matter of McGough v State of New York, 243 AD2d 983, 983-984 [1997], lv denied 91 NY2d 807, among others.

The court said the disciplinary settlement agreement specified the party that would determine whether there was subsequent misconduct by Campbell, – i.e., OMH. Accordingly, said the Appellate Division, Campbell’s sole remedy was to challenge OMH’s determination that resulted in her termination pursuant to CPLR Article 78.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/disciplinary-probation.html

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Analyzing out-of-title work grievances determinations

Analyzing out-of-title work grievances determinations
Steen v Governor’s Office of Employee Relations, 271 AD2d 738

Resolving out-of-title work disputes is not something courts typically do.

As the Appellate Division, citing Cove v Sise, 71 NY2d 910, noted in deciding the Steen case: “it is well settled that [a]dministrative determinations concerning position classifications are ... subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis."

But, said the court, where, as here, the record lacks any rational basis upon which to conclude that petitioners are not doing out-of-title work courts will intervene.

In Steen v GOER, the Appellate Division overturned a determination by the Governor’s Office of Employee Relations because it found that in this instance the comparison of petitioners’ duties with the duties of a Treatment Team Leader is inapposite -- i.e., it was neither appropriate nor pertinent to do so.

Why? Because, said the court, [a]n employee need not be assigned the full range of duties of a higher salary grade to be performing out-of-title work. The Appellate Division pointed to Collins v GOER, and Kuppinger v GOER, 203 AD2d 664, as support for its ruling.

Nancy Steen had filed a grievance claiming that she and a number of co-workers were being required to perform out-of-title duties and asked that their positions be reclassified and reallocated to higher-grade positions in recognition of their assignments. After the grievance was denied at all steps of the grievance procedure, she sued.

Steen contended that she and her co-grievants were appointed to positions of Recreation Workers, SG-14, Recreation Therapists, SG-14 or Senior Recreation Therapists, (Filed Mar. 29, 2000.) SG-17 by Pilgrim State Hospital. Following Pilgrim’s instituting a new program known as the Buffalo Model, Steen contended that she and the other employees were given an in-house designation of Treatment Plan Coordinators and were assigned a specific number of patients. Steen’s basic claim: the creation of the in-house title Treatment Plan Coordinators was a subterfuge allowing Pilgrim to assign out-of-title work to them and that their new duties were consistent with the duties of a Treatment Team Leader, SG 25.

According to the Appellate Division, as Treatment Plan Coordinators, each petitioner was responsible for transcribing information from the patient’s chart to a treatment plan worksheet and also interviewing each patient and entering the information from the interview in the second section of the worksheet.

Thereafter, the treatment team met and developed the treatment plan. Steen and her co-workers were then required to conduct a review with respect to each patient after 90 days to evaluate the progress of each patient with respect to the goals and objectives in the plan devised from the worksheets.

The court’s conclusion: [t]he focus of the review should have been whether the duties are appropriate to petitioners’ titles.

Noting that the reviewing officer recognized that the duties at issue are not contained verbatim in the classification standard but concluded they were a logical extension of the responsibility of professional or para-professional members of the treatment team, the court annulled GOER’s ruling denying Steen’s grievance.

Finding that there was no support for the reviewing officer’s conclusion in the record, the Appellate Division decided that the determination did not have a rational basis.

Further, the court specifically commented that a review of a patient’s entire chart containing information from each discipline represented by the team and the interview of the patient is simply not a logical extension of petitioners’ responsibilities to fill out forms and reports concerning patients in their recreational programs.
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Governor Cuomo proposes legislation providing for a statewide, objective teacher evaluation system, based on both performance and seniority

Governor Cuomo proposes legislation providing for a statewide, objective teacher evaluation system, based on both performance and seniority
Source: Office of the Governor

On March 2, 2011, Governor Andrew M. Cuomo announced that he will be submitting a program bill that would expedite and expand ongoing plans to implement a statewide, objective teacher evaluation system, based on both performance and seniority, for school districts to use when making employment decisions.

The Governor noted that both the State Senate and the State Assembly have acknowledged that the New York State must move forward on improving performance in the classroom as well as improving teacher evaluations. The real question, said the Governor, is what is the alternative to "last in, first out," the current statutory standard used in layoff situations involving personnel in both the classified service and the unclassified service.

The Governor said that the current so-called "last in, first out" policy “lacks objectivity by maintaining teachers simply based on years of service without factoring in classroom effectiveness, performance, or need.”

"It is time to move beyond the so-called 'last in, first out' system of relying exclusively on seniority," Governor Cuomo said. "However, we need a legitimate evaluation system to rely upon. This will help make a statewide evaluation system ready and allow us to replace 'last in, first out.'"

According to the Governor, his proposed program bill would "accelerate the new standards to cover all grades and subjects for the 2011-2012 school year." In addition, the Governor said that his bill would set clear standards and enhanced transparency requirements, including the posting of guidelines on all school districts' Web sites. Parameters of the new teacher evaluation system include a new rating system including "highly effective," "effective," "developing," or "ineffective."

The Governor’s announcement also states that the evaluations will also play a significant role in a wide array of employment decisions, including professional development, tenure determinations, selection for leadership opportunities, and termination. Teachers and principals with a pattern of ineffective teaching or performance could be charged with incompetence and considered for termination through an expedited hearing process.

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