Considering hearsay evidence offered in the course of an administrative hearing

Considering hearsay evidence offered in the course of an administrative hearing

Derbyshire v Safir, 288 AD2d 18, [Motion for leave to appeal denied, 97 NY2d 611]

In this appeal, the Appellate Division held that Joseph Derbyshire received a fair hearing and that substantial evidence supported the administrative determination to dismiss him from his position.

Derbyshire had argued that certain hearsay evidence against him should not have been considered in making the administrative determination. The Appellate Division disagreed, ruling that “[h]ighly probative hearsay evidence was properly admitted” and thus could be considered in making the determination.

The court also commented that Derbyshire's admissions to his wife were not protected by the marital privilege (Section 4502[b], Civil Practice Law and Rules) because of the nature of the misconduct involved and it found no basis upon which to apply a more restrictive rule in administrative proceedings than would apply in a criminal proceeding.

Under the circumstances, the court said, “imposing the penalty of dismissal does not shock the conscience of this Court,” citing Brown v Safir, 258 AD2d 359, [leave to appeal denied, 93 NY2d 807].

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Doctrine of Estoppel applied in ADA litigation

Doctrine of Estoppel applied in ADA litigation

DeVito v Chicago Park District, CA7, 270. F.3d 532

Nicholas DeVito charged that his employer, the Chicago Park District, violated the ADA by failing to accommodate his disability. His claim was dismissed after a bench trial. The district court judge found that the DeVito was physically incapable of working full time, even with an accommodation, and therefore was not within the Act's protections. The Circuit Court agreed and dismissed DeVito's appeal.

DeVito worked as a laborer for the park district until he injured his back in 1979. Although his injury prevented his returning to his laborer's job, he was assigned to a “light duty” job -- answering the telephone at a park district office near his home.*

Four years later, the park district fired DeVito after it videotaped him twisting, bending, and climbing in and out of trucks.

Starting with the observation that the employment provisions of the Americans with Disabilities Act provide relief only to persons who are capable, with or without an accommodation that would make it possible for them to work despite a disability, to perform the essential functions of their job, which in the case of a full-time job requires that they be capable of working full time.**

In addition, said the court, there is a more fundamental objection to DeVito's claim. The doctrine of estoppel prevents a litigant from repudiating a representation that has reasonably, foreseeable induced reliance by the person to whom he made it. “Even if the representation was false (indeed that is the usual case in which the doctrine is applied), the maker of it is estopped (forbidden) to deny it and by denying it pull the rug out from under the unsuspecting person to whom he had made it.”

The doctrine has been applied in ADA cases much like this one -- cases in which an employee attempts to whipsaw his employer by first obtaining benefits or concessions upon a representation of total disability to work full time and then seeking damages for the employer's failure to accommodate the disability, which the employee now seeks to prove was not total after all.

In the words of the court, “an ADA plaintiff may be estopped by an inconsistent representation made to his employer to obtain benefits.” However, the Circuit Court observed that “since different statutes define total disability differently, the employee will sometimes be able to explain away the apparent inconsistency of his positions.

Here the court rejected DeVito's efforts to “explain away” any inconsistencies in his position. It said that the park district was entitled to rely on DeVito's implicit representation -- implicit in his behavior in his light-duty job answering the phone -- that “he could work no more than two or three hours a day and on his explicit representation that his condition had not improved since the original injury.”

* DeVito was allowed to leave work whenever he felt pain or stress and admitted that he would typically leave work after only two or three hours, though he was being paid the full wages of a laborer who works eight hours a day.

** The fact that DeVito had not worked full time for 13 years at the time of the appeal hearing -- the ostensible reason being his disability, and his statement at that hearing that he currently felt no better than he had felt when he was first injured -- was enough evidence to enable the district judge to find that DeVito was incapable of working full time.

PERB has exclusive jurisdiction to determine improper practice charge

PERB has exclusive jurisdiction to determine improper practice charge

Westchester County Dept. of Pub. Safety Police Benevolent Assn., Inc. v Westchester County, 35 AD3d 592, 828 N.Y.S.2d 412

Westchester County created three director positions in the Westchester County Department of Public Safety. It appointed three civilians to those positions rather than appoint “sworn officers” to the vacancies.

The Westchester County PBA sued, contending that because the positions involve the performance of traditional police functions, its members were deprived of positions that should have been reserved exclusively for them. In the words of the Appellate Division, “More precisely, [PBA] argues that it has an obligation to "preserve the work that its members perform." The PBA complained that the County is seeking to “circumvent" the collective bargaining agreement by creating what are, in essence, police positions, and staffing them with civilians.”

The Court said PBA’s underlying complaint is that the County committed an improper employer practice by its failure to bargain with it prior to the creation and relegation of work properly assigned within the bargaining unit to persons outside of it. Accepting PBA’s characterization of the nature of its case, the Appellate Division concluded that PBA’s action must be dismissed because resolving the improper labor practice charge it advanced is within the exclusive jurisdiction of the Public Employment Relations Board.

The decision noted that PBA, in an effort to maintain its law suit, argued that it had cited Civil Service Law § 209-a(1)(d) merely for the purpose of demonstrating standing but that the merits of this action were not within PERB's jurisdiction. The Appellate Division rejected the PBA’s “attempt to evade the consequences of its standing argument;” stating, “clearly, the [PBA] cannot have it both ways.”

Unless the CBA so provides, the statute of limitations for filing a lawsuit is not tolled because a contract grievance procedure must be exhausted before initiating litigation

Unless the CBA so provides, the statute of limitations for filing a lawsuit is not tolled because a contract grievance procedure must be exhausted before initiating litigation

Civil Serv. Employees Assn., Inc. v County of Nassau, 2011 NY Slip Op 05649, Appellate Division, Second Department

The Civil Service Employees Association and a number of the employees in the collective bargaining unit it represents[CSEA] initiated a lawsuit alleging that Nassau County breached a provision in the collective bargaining agreement (CBA) executed by the County and CSEA.

CSEA contended that Nassau alleged that Nassau had improperly placed employees promoted in calendar years 1999 and 2000 in the incorrect step or grade on the relevant graded salary schedule. Although both Nassau and CSEA moved for summary judgment,  Supreme Court denied the County's motion but granted CSEA’s cross motion for summary judgment on the issue of liability, and directed an inquest on the issue of damages.

Nassau appealed.

The Appellate Division, noting that an arbitrator previously denied CSEA’s request for a finding that the County had breached the CBA with respect to its handling of pre-2001 promotions, said that advisory determination never became binding on CSEA and thus its complaint was not barred by the doctrine of res judicata.

However, said the court, Nassau was correct when it contended that the six-year statute of limitations for an action upon a contractual obligation applies to CSEA’s action. Further, the statute of limitations was not tolled to allow CSEA to go through the internal grievance process, as they were required to do pursuant to the CBA's terms.

The Appellate Division ruled that “In the absence of a provision in the CBA providing for the tolling of the statute of limitations while [CSEA] exhausted the grievance process, the mere fact that the CBA required [CSEA] to exhaust the grievance process before filing suit in state court did not toll the statute of limitations,” citing Nassau Ch. Civ. Serv. Empls. Assn., Local 830, AFSCME, Local 1000, AFL-CIO v County of Nassau, 154 Misc 2d 545,  affd 203 AD2d 267.

Accordingly, because the complaint was filed on April 11, 2006, CSEA may only attempt to recover breach of contract damages for acts occurring on or after April 11, 2000. 

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05649.htm

Free Speech in the classroom

Free Speech in the classroom

Opinions by US Circuit Courts of Appeal

A number of U.S. Circuit Courts of Appeal have considered challenges from teachers contending that their respective employers had curtailed their constitutional right to free speech.

1. Mayer v. Monroe County Community School Corporation, 474 F.3d 477

In this 42 USC 1983 lawsuit, a teacher alleged that she was dismissed from her position because of her statement opposing the United State’s military involvement in Iraq in a social studies class. The Circuit Court said that the First Amendment does not entitle primary and secondary teachers to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system while teaching in a classroom setting.

2. Deschenie v. Bd. of Educ. of Cent. Consol. Sch. Dist. No. 22, 473 F.3d 1271

Here the Circuit Court ruled that a former teacher did not suffer unlawful retaliation for engaging in speech protected by the First Amendment after finding that the teacher’s speech, which concerned bilingual education, was not causally related to the adverse employment actions taken by the school board.

3. Casey v. W. Las Vegas Independent School District, 473 F.3d 1323

The school district and officials were sued for allegedly demoting and ultimately terminating a teacher for reasons that the teacher claimed constituted unlawful retaliation for her exercising her First Amendment rights. The court dismissed the appeal, commenting that the teacher failed to show that her statements concerning “the Head Start program” and miscellaneous violations of state or federal law were made in her capacity as a citizen and not pursuant to her “official duties.”