Proceeding with disciplinary action in situations where disability may be a consideration

Proceeding with disciplinary action in situations where disability may be a consideration

Matter of Schlitz v Cavanagh, 14 Misc.3d 1213(A

The significant issue in the Schlitz case concerned the interplay of two different provisions of the Civil Service Law: (1) serving disciplinary charges against an individual pursuant to Section 75 and (2) Section 72, which is triggered in cases of an employee’s inability to perform the duties of the position because of non-work related disease or disability.

Essentially Section 72 provides for the placement of an employee on a leave because of a disability, other than a disability resulting from an occupational injury or disease, in the event it is determined that he or she is unable to perform the duties of the position satisfactorily because of that disability.

In Penebre v Dzaluk, 51 AD2d 574, the Appellate Division ruled that §75 charges for misconduct should not have been served on a police officer but that the employer should have proceeded under §72, Ordinary Disability Leave instead. Penebre, said the court, “had performed successfully as a police officer for 13 years before his behavior markedly changed.” He became depressed and inattentive. Under these circumstances, the Appellate Division said that serving Penebre with §75 charges for misconduct was misplaced.

Schlitz also was served with disciplinary charges pursuant to Section 75. Before the conclusion of the disciplinary hearing, however, Schlitz was placed on Section 72 -- non-occupational disability leave -- from his position.

A physician was employed by the Town and asked to determine whether or not Schlitz was suffering from a “mental health issue” that affected his ability to perform his duties satisfactorily. The physician’s opinion, “given within a reasonable degree of medical certainty,” was that "any past misbehavior on the part of Mr. Schlitz would not have been because of a psychiatric condition."

Ultimately, Schlitz was found guilty of various instances of misconduct and the penalty imposed was demotion.

Schlitz appealed but withdrew his claim regarding the Section 75 determination and penalty by conceding that there was substantial evidence to justify the findings of misconduct and the penalty imposed. Instead, Schlitz contended that the Town knew that he was suffering from depression and that the filing of disciplinary charges against him under these circumstances amounted to unlawful workplace discrimination against a person with a disability.

In addition, Schlitz argued that the Town was required to present the evidence of his depression in the §75 hearing as a defense or in mitigation of the misconduct charges.

Justice Mayer found that Town was within its rights to conduct the §72 proceeding and suspend the §75 hearing pending the results of Schlitz’s medical evaluation. Further, said the court, once the Town had evidence that the misconduct alleged in the §75 charges and specifications were not due to mental disability, it had the right to move forward under §75.

As to Schlitz’s claim that he was the victim of “unlawful workplace discrimination against a person with a disability,” the court said that the medical evidence in this case was that Schlitz’s acts of misbehavior were not caused by a psychiatric condition. Justice Mayer held that “there is no admissible proof that the petitioner is, or ever was, mentally disabled, and the claim of workplace discrimination perpetrated by the Town by bringing the charges of misconduct against an allegedly disabled person is, therefore, without merit.”

In contrast to discipline/termination procedures, the basic concept underlying the use of Section 72 in disability related situations is the separation/rehabilitation/reinstatement of the employee.

Section 72.1 sets out the procedures to be followed by the appointing authority before an employee may be placed on leave for ordinary disability involuntarily.

Section 72.3 describes the appeal procedures, including recourse to the courts pursuant to Article 78 of the Civil Practice Law and Rules, available to an individual involuntarily placed on disability leave following a Section 72.1 hearing.

Section 72.5 provides an exception to the basic requirement that a Section 72.1 hearing must be concluded before the employee may be placed on Section 72 disability leave involuntarily based on the appointing officer determination that there is a "potential danger" if the employee is permitted to continue on the job.

Section 73 of the Civil Service Law addresses the termination of an individual who has been continuously absent from his or her position on Section 72 leave for more than one year.

Third Circuit sustains employee's removal for lying about reason for absences

Third Circuit sustains employee's removal for lying about reason for absences

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

John Prigge told Sears, his employer, that he was absent for two days to receive radiation treatment for prostate cancer.  In reality, Prigge suffered from bipolar disorder, which had been diagnosed several years earlier.  Prigge was subsequently absent for seven days during which he was admitted to a medical clinic suffering from depression.  On this occasion, Prigge advised Sears that his absence was due to incapacity and treatment for bipolar disorder.  He also confessed that his prior absence was not due to prostate cancer, but to bipolar disorder. 

Sears demanded that Prigge provide medical documentation substantiating his need for leave due to prostate cancer and bipolar disorder.  Prigge provided medical documentation substantiating his need for leave due to bipolar disorder.  He provided medical certification verifying that he did not suffer from prostate cancer.  Sears fired for failure to substantiate his need for leave with medical documentation due to prostate cancer, and for lying about his need for prostate cancer. 

The Third Circuit agreed with Sears.  It found, essentially, that Sears had the right to terminate Prigge for lying about his need for leave, and because he failed to substantiate that need with supporting medical documentation. 

Mr. Bosland Comments:  However awkward or embarrassing, employees need to tell their employers the real reason for their need for FMLA leave.  Courts have not allowed employees to tell their employer a false reason for the need for leave.  In addition to being truthful, had Prigge told Sears the real reason for the prior leave it would have likely been covered by the FMLA.  Courts have not excused employees from telling their employer the real reason for their need leave out of embarrassment or fear that the reason will be fodder for office gossip.  Nor have they looked past the false reason to find FMLA coverage based on the real reason for the leave.  Courts have consistently found that employers are entitled to the real reason animating the need for leave. 

Prigge v. Sears Holding Corp., No. 10-3397 (3d Cir. June 23, 2011).

Insurance to defend and indemnify offices and employees of a political subdivision of the State

Insurance to defend and indemnify offices and employees of a political subdivision of the State

Watkins Glen Central School District v. National Union Fire Ins. Co. of Pittsburgh, 286 A.D.2d 48

Sections 17 and 18 of the Public Officers Law provide for the defense and indemnification of public employees in connection with their official acts or their failure to perform an official act. Sometimes a public employer decides to purchase an insurance policy to protect itself in the event it is sued for its employees' alleged acts or omissions, official or otherwise.

The Watkins Glen Central School District purchased an “errors and omission” insurance policy from National Union Fire. When the District asked to Company to defend and indemnify it in connection with another law suit, Dean v Watkins Glen Central School District, [Western District of New York, Civil Action No. 98-CV-0362C], National Union said it was not obligated to defend and indemnify the District under the terms of the policy.* The District sued National, seeking a court order declaring that the insurance company was obligated to defend and indemnify it in connection with the Dean action.

In Dean, the plaintiff alleged that the District was negligent in its hiring and supervision of a teacher with a history of sexual misconduct with students. Did this mean that National Union could disclaim coverage under the exclusion for intentional acts set out in the policy it issued to the District?

The Appellate Division said that National Union could not disclaim coverage, finding that “to permit the insurer to do so would wholly vitiate coverage and frustrate the reasonable expectations of the insured, contrary to the parties' unambiguous intentions.”

Accordingly, ruled the court, under the circumstances of this case, Watkins Glen is entitled to be defended and, if need be, indemnified by National Union Fire as a matter of law.

Significantly, National Union claimed that coverage for damages arising from the teacher’s alleged sexual misconduct was expressly foreclosed pursuant to the unambiguous language of the assault and battery and bodily injury/emotional distress exclusions set out in the District's policy. The District, on the other hand, offered parole evidence that the parties had purposely negotiated for the elimination of a provision within the policy that would have expressly excluded coverage for sexual molestation.

The Appellate Division said that an understanding of the type of insurance policy involved was critical to correctly deciding the appeal. An errors and omissions policy is not a standard general liability policy but rather “is intended to insure a member of a designated calling against liability arising out of the mistakes inherent in the practice of that particular profession or business” other than those engaged in the legal and medical fields.

The Appellate Division ruled that National Union's errors and omissions policy was intended to cover the District's negligence in its rendering of professional services. Such coverage, said the court, undeniably includes negligence in the hiring and supervision of employees. Finding “no direct controlling authority to the contrary from any New York court precluding such errors and omissions coverage in a case such as this,” the Appellate Division said that it was persuaded that “National Union is indeed obligated to provide the School District with defense and indemnification for its potential liability for its alleged professional malpractice.”

* In the Dean case it was alleged that the District was negligent in connection with its hiring, supervision, and retention of a teacher. The teacher was reportedly convicted in Pennsylvania in 1974 of sex crimes he committed in the course of his employment as an elementary school teacher and Dean alleged that the teacher committed criminal acts of sexual abuse as against the Dean infant plaintiffs while in the employ of the District.

Limiting the use of personal leave accruals

Limiting the use of personal leave accruals

Johnston v ITT Aerospace/Communications, CA7, 272 F.3d 498

Sometimes an employee will challenge his or her employer's placing restrictions on the use of an employee's personal leave accruals. In the Johnston case, the Circuit Court of Appeals considered whether an employer's leave policy that distinguished between granting paid leave in connection with an individual's responding to a court order and the employee's filing a lawsuit on his or her own behalf, was lawful.

Kevin M. Johnston, an employee of ITT Aerospace/Communications Division of ITT Industries, Inc., challenged the company's attendance policy, which contains an exception for absences that are due to the employee's being ordered by a court “to appear as a witness (not a party).” The issue was raised as part of Johnston's Title VII law suit against ITT after he was assessed two unexcused absences for days on which he attended a preliminary pretrial conference, and gave his deposition, in the Title VII action that he filed against ITT.

The Circuit Court concluded that “[t]here is nothing unlawful about a leave policy that distinguishes between leave that is due to a court order and leave to enable an employee to engage in private business, including the filing of lawsuits.”

Mental stress and workers' compensation

Mental stress and workers' compensation

Vaupell v Buffalo City School District, 288 A.D.2d 510

The provisions set out in Section 2(7) of the Workers' Compensation Law [WCL] was a critical factor in resolving the appeal filed by Naomi Vaupell challenging the Workers' Compensation Board's denying her additional benefits following her termination by the Buffalo City School District.

WCL Section 2(7) specifically excludes from compensation “an injury which is solely mental and is based on work related stress if such mental injury 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.”

Naomi Vaupell had suffered a head laceration and concussion in September 1993 while working as a special education teacher for the Buffalo City School District. She filed for and received workers' compensation benefits for a consequential psychiatric condition. In September 1994, Vaupell returned to work with no restrictions imposed by her treating psychiatrist and her Workers' Compensation case was closed.

In September 1995, Vaupell was denied tenure and terminated from her position based upon her poor job performance. She then filed for additional workers' compensation benefits alleging that her ineffectiveness as a teacher and termination were causally related to her previously compensable psychiatric condition.

A Workers' Compensation Administrative Law Judge denied Vaupell's claim upon finding that any recurrence of her stress-related symptoms was due to her poor performance evaluations. The Workers' Compensation Board affirmed this decision and Vaupell appealed its ruling.

The Appellate Division dismissed Vaupell's appeal, noting that “[s]ince the Board decided only the question of whether claimant's inability to perform her job and her resulting termination were causally related to her 1993 injury, this Court's review is limited to determining whether substantial evidence supports the Board's conclusion that claimant's loss of employment was solely related to the employer's denial of tenure and her poor work performance,” thus triggering the provisions of WCL Section 2(7).

The decision notes that Vaupell testified that she was emotionally devastated when she received negative evaluations and the letter of dismissal. Accordingly, said the court, “the Board's conclusion that Vaupell's symptoms of stress were related to poor work evaluations rather than her original compensable injury is supported by the record.”

As the evidence presented at the Workers' Compensation hearing established that Vaupell had been evaluated as unsatisfactory in the performance of her teaching duties prior to, as well as after, her injury and the lack of any evidence in the record suggesting that the employer acted in bad faith in making the negative evaluations or denying Vaupell tenure, the Appellate Division declined to disturb the Board's decision.