Creating and abolishing a temporary position

Creating and abolishing a temporary position

Wilson v Madison-Oneida BOCES, 268 AD2d 625

Frequently a public employer will establish a temporary position to handle a particular need that is expected to be resolved in a relatively short period. The Wilson case addresses the creation and abolishment of temporary positions and the rights of individuals appointed to such temporary positions.

 The Madison-Oneida BOCES appointed Dana Wilson as “temporary clerk of the works” to perform construction oversight services for the Cazenovia Central School District and the Stockbridge Valley Central School District. The item was established as a temporary position in the civil service.*

BOCES initially wrote to Wilson telling him that his appointment was effective February 9, 1996 and would run through June 30, 1996. He was to be compensated at an annual salary rate of $40,000. BOCES later wrote Wilson advising him that he was appointed “temporary clerk of the works” for the period July 1, 1996 through June 30, 1997 at the same rate of compensation.

When the work at Cazenovia was nearing completion, Wilson commenced working at Stockbridge. When Stockbridge’s project was shut down due to poor weather conditions, Stockbridge asked BOCES to “adjust its contract” for clerk of the works services. As a result, BOCES abolished Wilson’s position effective January 17, 1997 and discontinued his employment.

Wilson sued, contending that BOCES violated its “employment agreement” to employ him through June 30, 1997 and, in addition, urged that it had terminated him without just cause.

The Supreme Court, treating this as an “Article 78” proceeding rather than as an action for “breach of contract,” dismissed his petition, finding that it was untimely. Wilson appealed.

First, the Appellate Division pointed out that the four-month Statute of Limitations contained in Section 217 of the Civil Practice Law and Rules is applicable to proceedings contesting the abolishment of positions in the public service. It then said that the time period to challenge the decision runs from the date abolition. Agreeing with the lower court, the Appellate Division said that Wilson’s Article 78 petition was untimely.

In an effort to avoid this result, Wilson tried to convince the court that this was a “breach of contract” case and thus his petition was timely as it was subject to a longer Statute of Limitations provision.

The Appellate Division rejected Wilson argument, holding that there was insufficient evidence to demonstrate a formal employment contract between Wilson and BOCES or the school districts. It said that the “employment notices” he relied do not establish the existence of such an agreement.

Thus, said the court, Wilson’s claims involve the abolition of the position of temporary clerk of the works, a matter that may be properly challenged only via an Article 78 proceeding.

According to the ruling, Wilson’s position was officially abolished effective January 17, 1997 at a meeting of BOCES held on February 13, 1997. The Appellate Division concluded that regardless of whether the four-month Statute of Limitations is measured from the date of the BOCES meeting or the effective date of abolition of the position, Wilson’s commencement of the action in January 1998 was untimely.

* The decision refers to Wilson’s temporary position as being in the “civil service” when it would be more accurate to describe it as being in the “classified service.” In New York, the civil service consists of the classified service and the unclassified service. Educators, typically serving in positions in the unclassified service, are also in the civil service. 

Disqualifying misconduct for the purposes of Unemployment Insurance benefits

Disqualifying misconduct for the purposes of Unemployment Insurance benefits

Matter of Jacquelyn M. Cody v Commissioner of Labor, 37 AD3d 920

Jacquelyn M. Cody, a tenured guidance counselor employed by the New York City Department of Education, was served with disciplinary charges pursuant Section 3020-a of the Education Law . The charges set out 42 specifications of misconduct for actions she committed during the 2001-2002 and 2002-2003 school years.

The Section 3020-a hearing panel found Cody guilty of 38 specifications of conduct unbecoming her profession.*

Terminated from her position, Cody applied for unemployment insurance benefits.

Ultimately, the Unemployment Insurance Appeal Board determined that Cody was disqualified from receiving such benefits because she lost her employment due to misconduct. Cody appealed the Board’s decision.

Citing Limoncelli [Commissioner of Labor], 32 AD3d 1066, the Appellate Division sustained the Board’s ruling. The court said that that “An employee's actions that are contrary to established policies and have a detrimental effect upon an employer's interests have been found to constitute disqualifying misconduct.”

Finding that there was substantial evidence in the record that Cody’s behavior represented “a departure from established procedures pertinent to faculty members engaged in similar activities or confronted by like circumstances,” the Appellate Division dismissed her appeal.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/disqualifying-misconduct-for-purposes.html

* According to the decision, Cody’s “transgressions include her failure to report the possession of illegal drugs by one of her students, attempts to surreptitiously distribute an unauthorized survey on school property, and 36 instances of improper revisions to student records or transcripts.”

Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations

Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations 

Matter of Cappellino v Town of Somers, 2011 NY Slip Op 03234, Appellate Division, Second Department

Cappellino v Town of Somers demonstrates, once again, that a disappointed individual’s reliance on a request for reconsideration of a final administrative decision to toll or extend the statute of limitations to file a timely appeal is misplaced

The Town of Somers and the Town of Somers Police Department denied a request submitted by James Cappellino and other individuals for reimbursement of the cost of their Medicare Part B benefits.

In an action characterized as “in the nature of mandamus,* Cappellino asked Supreme Court to order the Town of Somers to provide the appropriate amounts to reimburse them for those costs.

Supreme Court, however, never considered the merits of the petition, finding that it was untimely.

The Appellate Division agreed, explaining on June 18, 2009 Cappellino and the others involved in this action received “a final and binding determination within the meaning of CPLR 217(1), as it unequivocally denied the petitioners' request for reimbursement, and it therefore commenced the running of the statute of limitations.”

Cappellino and the other plaintiffs, however, did not commence this proceeding, until October 22, 2009, which was beyond the applicable four-month statute of limitations of CPLR 217(1). 

Although Cappellino contended that there were communications with the Town’s counsel after June 18, 2009, including an alleged request for further administrative review, neither such a request nor related correspondence extended or tolled the running of the statute of limitations.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03234.htm

* “Mandamus was one of a number of ancient common law writs and was issued by a court to compel an administrative body to perform an act required by law.

Employee’s claims of disparate treatment on the basis of gender, sexual harassment and retaliation by the employer dismissed for lack of sufficient evidence

Employee’s claims of disparate treatment on the basis of gender, sexual harassment and retaliation by the employer dismissed for lack of sufficient evidence
Grovesteen v New York State Pub. Employees Fedn., AFL-CIO, 2011 NY Slip Op 03168, Appellate Division, Third Department

Robin Grovesteen was employed as a field representative by the New York State Public Employees Federation, a union representing various professional, scientific and technical employees of New York State, among others.

Grovesteen sued the Federation, alleging “disparate treatment on the basis of gender, sexual harassment and retaliation.” Supreme Court dismissed her petition and the Appellate Division affirmed the lower court’s action.

With respect to her claims of disparate treatment claim, Grovesteen alleged that because of her gender, she was, among other things, denied separate office space, required to conduct excessive training sessions, forced to cover work assignments in other regions, and denied direction, assistance and support from her supervisors.

As to her claims related to sexual harassment, Grovesteen said that the director of field services at the time she was hired, who eventually became her direct supervisor, made disparaging sexual remarks about her at the onset of her employment and that the elected regional coordinator in her region, who was a union member, created a sexually hostile environment by, among other things, voicing his opinion that plaintiff was hired because of her sexual relationship with another field representative and making inappropriate comments about her attire.

Lastly, Grovesteen contended that due to her disability and exercise of her rights under the Human Rights Law, the Federation retaliated against her by, among other things, closing the Region 7 office and contesting her claim for workers' compensation benefits.

The Appellate Division found that notwithstanding the fact that Grovesteen was a woman and thus a member of a protected class, the evidence she presented was insufficient to establish a prima facie case of sexual discrimination or harassment.

The court explained that “Even considering the totality of the alleged incidents in a light most favorable to [Grovesteen], the terms and conditions of her employment, which clearly caused her stress and frustration, were not so severe and pervasive as to create an adverse employment action in support of her claim of disparate treatment based on gender.

Turning to Grovesteen’s contention with respect to a hostile work environment, the Appellate Division said that there was not sufficient evidence to demonstrate that the conduct so permeated the workplace and altered the conditions of her employment as to support the claim of sexual harassment based on a hostile work environment. Further, said the court, although Grovesteen’s allegations demonstrate “the existence of personality conflicts and disagreements with the management's style, as well as the inherent demands and autonomous nature of being the only field representative in a large remote geographic region, the record does not demonstrate any material adverse change in her employment as a result of the alleged conduct warranting the inference of a discriminatory motivation.”

As to Grovesteen’s claim of retaliation, the Appellate Division ruled this aspect of her petition was also properly dismissed. Here, said the court, Grovesteen’s “sporadic complaints” during her employment are insufficient to establish that she was engaged in a protected activity, “particularly given the fact that no formal claim of unlawful discrimination was made until after the allegedly retaliatory action occurred.”

Finally, the court rejected Grovesteen’s argument that the Federation’s challenging her application for workers’ compensation benefits constituted retaliation within the meaning of the Human Rights Law, indicating that “an employer's exercise of its right to challenge a workers' compensation claim cannot be linked to a retaliatory motivation.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03168.htm

Unfair labor practices - protected activities

Unfair labor practices - protected activities

CSEA Local 1000 v PERB, 267 AD2d 935

CSEA appealed a determination by the New York State Public Employment Relations Board [PERB] that the Holbrook Fire District did not commit an improper employer practice when it disciplined one of its employees, Jason Feinberg.

The district had filed eight charges against Feinberg, a firehouse attendant, alleging misconduct and, or, incompetence pursuant to Section 75 of the Civil Service Law.

Feinberg was alleged to have “permitted unauthorized personnel in his work area, participated in inappropriate activities during work hours, failed to timely complete certain work assignments and follow standard operating procedures in performing certain work-related activities.”

CSEA filed an improper employer practice charge against the district pursuant to Civil Service Law Section 209-a with PERB on behalf of Feinberg. CSEA contended that the district had filed disciplinary charges against Feinberg “in retaliation for his efforts at organizing a union.”

While CSEA’s charges were pending before PERB, the disciplinary hearing officer issued a report and recommendation finding Feinberg guilty of six of the charges. The penalty recommended by the hearing officer: Feinberg should be terminated from his employment. The District accepted the hearing officer’s findings and recommendations and dismissed Feinberg.

CSEA and the district stipulated that rather than holding a separate hearing, the record of the proceedings conducted in connection with the disciplinary charges would be used by PERB’s Administrative Law Judge (ALJ) in resolving the improper practice charge. Finding that other employees who had engaged in similar misconduct had not been disciplined by the district, the ALJ ruled that the district “had committed an improper practice by discharging Feinberg in retaliation for protected union activities.” PERB reversed its ALJ’s ruling.

PERB said that “the ALJ should have deferred to the findings of the hearing officer that the charges against Feinberg were brought by the District for proper business reasons and not to retaliate against him for his organizing activities”.

The Appellate Division initiated its review of CSEA’s appeal from PERB’s ruling by noting that “the relevant inquiry in a proceeding pursuant to Civil Service Law Section 75 is very different than that in an improper practice proceeding under Civil Service Law Section 209-a.” The court, citing City of Albany v Public Employment Relations Board, 43 NY2d 954, said:

1. In considering an appeal involving Section 75, the focus is upon whether there was cause for the employee’s dismissal.

2. In considering an appeal involving Section 209-a, the focus it is whether the employer‘s action was motivated by anti-union animus and “it is irrelevant ... whether or not cause for the employer’s action in terminating [the employee] actually existed.”

The Appellate Division said that PERB relied upon its policy of deference and the disciplinary hearing officer’s determination when it reversed ALJ’s determination.

However, said the court, its review of the decision in the Section 75 proceeding indicates that the disciplinary hearing officer “did not fully consider the dispositive issue in the improper practice proceeding, i.e., whether Feinberg’s firing was improperly motivated.” Accordingly, the Appellate Division said that “PERB’s deference to the [Section 75] Hearing Officer’s findings as the sole basis in resolving the improper practice charge was inappropriate.”

The Appellate Division annulled PERB’s determination and remanded the case to PERB “for an independent review of the ALJ’s decision of [CSEA’s] improper practice charge in light of all the evidence contained in the record of the Civil Service Section 75 proceeding.”