Election of a remedy

Election of a remedy

Appeal of A.D. – Decisions of the Commissioner of Education, Decision No. 15,492

A tenured math teacher attempted to appeal a personnel matter to the Commissioner of Education. The Commissioner declined to assume jurisdiction in the matter pointing out that the appeal concerned a matter that had earlier been considered under a contract grievance procedure involving the same parties.

The Commissioner said that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner for review of the same matter. As the record reflects that A.D. brought a grievance “on the very same issues that are the subject of this appeal and the grievance resulted in a final determination reached on January 29, 2006,” that decision precluded review by the Commissioner. 

The Commissioner cited Appeal of Coughlin, 41 Ed Dept Rep 484 and Decision No. 14,751 in support of his ruling.

Employee not entitled to interest on back pay due upon reinstatement to his or her former position pursuant to court order

Employee not entitled to interest on back pay due upon reinstatement to his or her former position pursuant to court order
Miller v Nassau County Civ. Serv. Commn. 2011 NY Slip Op 05033, Appellate Division, Second Department

Roberta Miller sued the Nassau Civil Service Commission, seeking reinstatement to her former position and for back pay.

Miller appealed Supreme Court’s failure to award her predecision interest.*
 
The Appellate Division rejected her claim for “predecision interest,” noting that the award of back pay to in this instance is derived from Civil Service Law §77, "and that statute does not provide for predecision interest." Citing Matter of Bello v Roswell Park Cancer Inst., 5 NY2d 170.

§77, in pertinent part, provides that “Any officer or employee who is removed from a position in the service of the state or of any civil division thereof in violation of the provisions of this chapter, and who thereafter is restored to such position by order of the supreme court, shall be entitled to receive and shall receive from the state or such civil division, as the case may be, the salary or compensation which he would have been entitled by law to have received in such position but for such unlawful removal, from the date of such unlawful removal to the date of such restoration, less the amount of any unemployment insurance benefits he may have received during such period….” 

.* See http://publicpersonnellaw.blogspot.com/2011/06/jurys-decision-in-favor-of-plaintiff.html for a summary of the earlier determination by the Appellate Division giving rise to this appeal.

The decision is posted on the Internet at:  
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05033.htm

Retaliatory dismissal

Retaliatory dismissal

Lipphardt v Durango Steakhouse, 267 F.3d 1183

An employee has a consensual intimate relationship with a co-worker. After discontinuing the relationship the employee tells the employer that he or she is being subjected to harassment by the co-worker and as a result, is terminated. These were the events leading to the Mary Hope Flipchart’s lawsuit against Durango Steakhouse.

The issue before the Circuit Court of Appeals: is an employee who was formerly involved in an intimate relationship with a co-worker precluded from bringing a claim against the employer for retaliatory discharge if the employee is fired after reporting former boyfriend's or girlfriend's harassing conduct to their mutual employer?

Lipphardt complained that after ending her relationship with co-worker Donald Knuth, she began having difficulties with Knuth at work. According to Lipphardt, Knuth consistently attempted to convince Lipphardt to resume their intimate relationship. After a number of off-the-job episodes, Lipphardt reported Knuth's actions and their impact on her to her supervisor and requested a transfer.

According to the decision, while Lipphardt was on a previously scheduled vacation, Knuth was told that the company was considering firing both of them. Knuth alleged that the general manager then asked him if he knew anything that could get Lipphardt fired, as the restaurant would rather keep him and “get rid of the bitch.” Knuth told the general manager that Lipphardt had given free food to the employees of a nearby tanning salon in exchange for tanning services. Lipphardt was fired upon her return from vacation.*

Lipphardt filed complaint alleging hostile work environment, sexual harassment, quid pro quo sexual harassment, retaliation, and negligent retention. The district court granted Durango's motion for summary judgment on the quid pro quo sexual harassment charge and, at the close of evidence, its motion for judgment as a matter of law on the claim of negligent retention.

The two remaining issues were submitted to the jury. The jury returned a verdict in favor of Durango on the hostile work environment and sexual harassment issues but in favor of Lipphardt on the issue of retaliation.

The district court granted Durango's motion to vacate the jury's determination in favor of Lipphardt's with respect to her retaliation complaint “as a matter of law.” Lipphardt appealed.

The Circuit Court disagreed with the lower court's ruling overturning the jury's decision. It said that “[f]ollowing the clear instructions it was given, the jury returned a verdict recognizing Lipphardt's belief that she was the victim of harassment as objective. This decision was not improper as a matter of law, as a prior intimate relationship, while important, is not a determinative factor in a sexual harassment analysis.”

It also reversed the district court's order granting Durango judgment as a matter of law on Lipphardt's claim of retaliation. Further, said the court, it was remanding the matter to the district court to enter judgment for Lipphardt and award damages as decided by the jury.

* It was established at trial that a different employee was trading food for tanning services and that Knuth had never actually seen Lipphardt engage in this practice when he made the allegation. No one followed up with Knuth regarding his allegation before Lipphardt was dismissed.

Settlement agreements

Settlement agreements

McLean v Village of Sleepy Hollow, 166 F. Supp. 2d 898

What can an individual do if the terms of a settlement agreement between the employee and the employer fail to provide the benefit or result expected by the employee? In the absence showing that agreement to the settlement was the result of some fraud on the part of the employer, very little, as the McLean decision by a federal district court judge demonstrates.

Gary McLean was a part-time Buildings Code Enforcement Officer in the Village of Sleepy Hollow. He was also employed full time in another position and in view of this, he was permitted to set his own work schedule. McLean was terminated from his position following the election of a new mayor. He sued in federal district court, contending that he had been fired in retaliation for his vocal support of the previous administration.

The Village and McLean settle the case. McLean was to be reinstated with back pay and his attorneys' fees paid -- all the relief to which he would have been entitled had he won his lawsuit. Settlement documents were signed and the Court “so ordered” the Stipulation and Order of Settlement.

The settlement included the following provision:

“IT IS FURTHER AGREED that the plaintiff will be re-employed by the Village of Sleepy Hollow at the annual salary of $10,000 per annum as a part-time Code Enforcement Officer subject to all terms and conditions of employment attendant to that position.”

McLean was told that he could return to work by letter dated June 14, 2000. Prior to this date, however, the Mayor endorsed a recommendation that Building Code Inspectors be required to work between the hours of 9 a.m. and 12 p.m. Mondays through Fridays. As McLean's full time job required that he be at work 7:30 a.m. and 3:30 p.m., he was unable to meet the Village's new work schedule set for his position. The possibility of a new policy changing the work hours of his job was not mentioned to McLean during the settlement negotiations.

Although the Village offered McLean the option of working any three successive hours between 8:30 AM and 4:30 PM on weekdays, this would not solve his problem and he did not return to work as contemplated by the settlement. The Village subsequently filed disciplinary charges against McLean for failure to return to work “as scheduled.” The hearing officer ruled that the Village had acted within its authority when it changed McLean's work schedule and recommended that McLean be dismissed from his position because he failed to report for work.

The Village Board adopted the hearing officer's findings and recommendations and terminated McLean. McLean filed an Article 78 in state supreme court challenging the Village's action. He also asked the federal district court to enforce the terms of the settlement order.

McLean's argument: he would never have settled the case if he had known that he would have to give up his full-time job in order to go back to work as a Building Code Examiner. He contended that the use of the phrase “subject to all the terms and conditions of employment attendant to that position” in the Stipulation and Order means that the Village had to reemploy him on the terms that were in effect at the time he agreed to settle the case.

The district court said that although the “situation is extremely unfortunate” and McLean did not get what he thought he was entitled to under the settlement to which he agreed, it agreed with the Village that his motion must be denied.

Although it is clear that the court has subject matter jurisdiction to enforce the settlement, “subject matter jurisdiction was only the first hurdle to adjudication” in this case. The federal judge pointed out that McLean participated in a civil service disciplinary hearing, where he litigated and lost the issue of the Village's right to dismiss him notwithstanding the terms set out in the settlement agreement.

According to the ruling, whether the hearing officer's finding against McLean bars his obtaining a different interpretation of the meaning of the relevant language in the settlement Stipulation in federal court is a complicated question. While any decision by the New York State Supreme Court in the Article 78 proceeding would be entitled to preclusive effect under the Full Faith & Credit Clause, regardless of whether the Supreme Court ruled on questions of fact or of law, here there is only the administrative determination. Is an administrative hearing officer's unreviewed findings entitled to preclusive effect under the circumstances?

According to the ruling, this depends on whether the challenged elements constitute findings of fact, where preclusive effect is accorded, or findings of law.

The judge said that he did not have to decide if there was any “preclusionary effect” with respect administrative findings of law. Instead the court held that even if McLean could relitigate the meaning of the settlement agreement, he agreed “with the conclusions of the hearing officer.”

McLean conceded that the Village had the right to set the terms and conditions of employment, including the work schedule, of its employees. In the words of the court:

The Village is of course free to waive its rights in this regard, but any such waiver must be apparent from the face of the contract between McLean and Sleepy Hollow. The terms of the Stipulation and Order are artless (at least from McLean's perspective), but the relevant sentence is not ambiguous and cannot be read as a waiver by the Village of its right to alter the terms and conditions of its employees' jobs. The Stipulation does not require the Village to maintain the terms and conditions of McLean's employment as they were at the time the settlement was negotiated. It says only that McLean will be reemployed on the terms and conditions that are “attendant to his position.” While the words “from time to time” do not appear after the word “position,” they do not have to, because the usual rule is that job terms can be changed. McLean's reading of the Stipulation, not the Village's, is the one that departs from the usual rule; thus McLean's reading cannot be adopted unless it is clearly spelled out in the contract. It is not. End of discussion.

This, said the court, leads to a harsh result. However, the fact that McLean and his counsel assumed that everything would go back to the way it was, -- i.e., “that they subjectively intended the settlement would restore the status quo ante” -- is insufficient to bind the Village when that subjective intention is not clear from the objective manifestation of McLean's intent - the words of the Stipulation and Order.

Imprudent action bars accidental disability benefit

Imprudent action bars accidental disability benefit

Sullivan-Dorsey v NYC Police Pension Fund, 288 AD2d 131

The Board of Trustees of the New York City Police Pension Fund rejected the application for accidental disability benefits filed by Laura Sullivan-Dorsey, a New York City police officer. Sullivan-Dorsey appealed, contending that she was injured in the line of duty. She claimed that she was entitled to such disability benefits as a result of her falling from a building ledge while at work.

According to the decision, Sullivan-Dorsey was injured when she fell from a second-story window ledge while attempting to gain access to an adjoining office at the Queens Narcotic District Office.

Sustaining the Board's decision denying her application for accidental disability benefits, the Appellate Division said that Sullivan-Dorsey's injury was not the result of an “accident” within the meaning of City of New York Administrative Code Section 13-252 ... but of her own conscious and highly imprudent decision to attempt to gain entry to an office by means of a window ledge.