Appointing authority threatening to do what it has a legal right to do is not “coercion”

Appointing authority threatening to do what it has a legal right to do is not “coercion”

Rychlick v Coughlin, 63 NY2d 643

Suppose an employee entitled to pre-termination “notice and hearing” is told that unless he or she immediately resigns from his or her position, he or she will be served with disciplinary charges. Does such a demand constitute unlawful coercion? This issue was considered by the New York State Court of Appeals in Rychlick.

Rychlick, a State corrections officer, was told that unless he immediately submitted his resignation, formal disciplinary charges would be filed against him. He submitted his resignation. A few days later he asked to withdraw the resignation on the grounds that it had been “forced” from him. When his request was denied, Rychlick sued, claiming the resignation had been obtained under duress and thus was void.

The Court of Appeals upheld the appointing authority's refusal to allow Rychlick to withdraw his resignation, ruling that threatening to do what one had the legal right to do -- file disciplinary charges against an employee -- does not constitute unlawful duress.

Anatomy of a hearing officer's disciplinary findings and recommendation

Anatomy of a hearing officer's disciplinary findings and recommendation

Averill Park CSD v Craig Landin, Decision of Hearing Officer Howard A. Rubenstein, Esq.

The analysis of the record by the hearing officer in considering Section 75 disciplinary charges filed by the Averill Park Central School District against school custodian Craig Landin provides examples of several important issues that a hearing officer may be required to consider and rule upon in the course of formulating his or her findings and recommendations.

In the course of formulating his findings and recommendations, Section 75 Hearing Officer Howard A. Rubenstein sets out his reasoning in (1) determining the credibility of witnesses and (2) holding that certain of the charges filed against Landin did not constituted “double jeopardy.”

Landin was served with a number of charges and specifications alleging misconduct and incompetence. One charge alleged that Landin falsified his time records by reported he had worked overtime when he “in fact ... did not work at least part of those hours” claimed. Other charges included allegations that Landin failed to perform, or assign a subordinate to perform, certain duties when he was directed to do so and neglected to open the building as scheduled on Election Day, November 7, 2000.

As to the charge alleging that Landin falsified his time records, on Tuesday, June 13, 2001, Landin completed and signed the time sheet indicating that he had worked overtime from 9:00 a.m. to 4:30 p.m. on Saturday June 9, 2001.

There was a problem with this statement, however. The testimony of Landin's supervisor, Henry Altenweg, was that he had observed Landin working “in his yard” as he drove by Landin's home about 10 a.m. on June 9 on his way out of town. Further, Dr. Wayne Johnston, the school principal, testified that he entered the building at approximately 9:15 a.m. on June 9, 2001 and had to turn off the alarm system when he arrived. Dr. Johnston explained that if anyone had been present in the building when he arrived, the alarm either would have been set off by the earlier visitor or would have had to have been turned off by the earlier visitor.*

Landin then explained that he did not work on June 9, attributing his claim to have worked on that date to “forgetfulness,” and made the affirmative defense that he had “accepted the offered overtime and completed the assignment on Sunday, June 10, 2001 between the approximate hours of 9 a.m. and 5 p.m.”

The problem with this defense was that Altenweg also testified that he drove by Landin's home about 1:00 p.m. on Sunday, June 10 while returning from out of town and again observed him working in his yard.

Essentially Landin testified that he worked either on the 9th or the 10th, or maybe on both days, but he just could not remember when he worked. However, when asked “[d]o you remember when you got to work?, he responded “[a]t 8:55 a.m.” because “ [w]hen I pulled up to the building -- my clock is right in my dashboard, smack dab in the middle. And just before I shut it off, I looked at the time to make sure I wasn't late, and it said 8:55.”

Sarah O'Hearn and Phyllis Kapelewski, witnesses called to testify by Landin, could not recall seeing him at work on either June 9 or June 10 or whether the tasks they asked to perform were actually done on that Saturday or that Sunday.

As to the reaction of the hearing officer to Landin's testimony concerning when he reported for work, Rubenstein commented that Landin just tells a different story every time he is asked when he actually worked. “Landin's explanation that his loss of memory as to which day he performed the overtime was due to illness apparently was the result of a case of date specific amnesia, but not time specific amnesia, since although he could clearly recall that he had reported for work at 8:55 a.m. and left work at 4:30 p.m, he could not recall on which day he had worked ... I reject Landin's testimony as to when and how many hours he may have worked overtime on the June 9th weekend as entirely unworthy of belief.”

In contrast, Rubenstein said that the testimony of Altenweg that he saw Landin at his home on June 9th at approximately 10:00 a.m. and on June 10th at approximately 1:00 p.m. was clear and convincing and stands essentially unchallenged in the record. He noted that Landin never specifically denied that he was at his home at 10 a.m. on Saturday June 9th and at 1 p.m. on Sunday June 10th.

In addition, said Rubenstein, Dr. Johnston's testimony that when he arrived at School on Saturday June 10th, the alarm system was still on and therefore Landin could not have been there at that time also stands unchallenged.

The bottom line: Rubenstein concluded that “Landin lied when he reported the date and time he worked overtime to Altenweg and is thus guilty of charge 1....”

Charge 2 consisted of five specific instances in which it was alleged that Landin failed to adequately clean, or to ensure that one of his subordinates adequately cleaned, various areas within the school building. The hearing officer found Landin guilty of all specifications.

In his post hearing brief, Landin argued that his failure to clean areas identified in the charge do not justify disciplining him given the fact that he had a significant amount of extra work to perform and, in any event, “is such a minor matter that it does not warrant the imposition of any penalty.” The hearing officer said that this argument goes to the nature of the penalty to be imposed rather than whether Landin was guilty as charged.

Landin also argued that he received a memorandum concerning his failure to remove certain materials from the building on January 3, 2001, and that such a memorandum constituted discipline and that he could not be charged with the same misconduct twice.

Rubenstein rejected this argument, noting that in this instance the counseling memo constituted proper supervisory conduct rather than an impermissible disciplinary action. In the words of the hearing officer:

As the Court of Appeals indicated in Holt v Webutick Central School District, 52 NY2d 625, a “counseling memorandum” that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.

In other words, comments critical of employee performance do not, without more, constitute disciplinary action. Typically the “more” is the imposition of some form of penalty. Coupling a “counseling memorandum” with some form of an adverse personnel action would be viewed as a subterfuge for initiating required disciplinary action.

In some instances it may be difficult to determine the location of that thin line that separates lawful “constructive criticism” of an individual's performance by a supervisor and supervisory actions addressing an individual's performance that are disciplinary in nature. Here, said Rubenstein, that thin line is easy to distinguish.

Why? Because “[t]he memo was clearly a lawful means of instructing Landin concerning unacceptable performance and the actions that he should take to improve his work. No disciplinary characteristics attach to the memo, nor does it contain any disciplinary action or threat or promise of detrimental action.”

Rubenstein also pointed out that in Patterson v Smith, 53 NY2d 98, the Court of Appeals ruled that including charges concerning an employee's performance that were previously addressed in a counseling memorandum does not constitute double jeopardy. The court commented that while a proper counseling memoranda may contain a warning and an admonition to comply with the expectations of the employer, it is not a form of punishment in and of itself.

As to Charge 3, Landin's alleged failure to open the building on Election Day, a task that he had done on earlier occasions, the hearing officer decided that Landin's failure to open the building or to ask if he should open the building “is inexcusable and constitutes misconduct or incompetence.”

In view of his findings that Landin was guilty of all charges and specifications, Rubenstein recommended that Landin be dismissed from his position. The school board adopted the hearing officer's findings and recommendation and dismissed Landin from his position.

Another procedural matter: Rubenstein placed the appointing authority's letter designating him to serve as the hearing officer in the record. Why did he elect to do this? To demonstrate his authority to conduct the hearing. The courts have ruled that the failure to designate the disciplinary hearing officer in writing is a fatal procedural defect requiring any resulting disciplinary action to be vacated.

* Dr. Johnston also testified that he reset the alarm when he left at approximately 10:00 a.m. The alarm “did not beep,” indicating that no one was present in the building when the alarm was reactivated.

Light duty assignments involving law enforcement personnel

Light duty assignments involving law enforcement personnel

Cripe v City of San Jose, CA9, 99-15253

The Cripe's case considers the mandates of the Americans With Disabilities Act [ADA] in terms of the obligations of a law enforcement agency to keep disabled police officers in the “main stream” for the purposes of making assignments consistent with the needs of the agency and the abilities of the disabled officer.

The San Jose [California] Police Department has more than 1,300 sworn officers. Officers were assigned to one of three types of positions: beat-patrol assignments; modified-duty assignments -- positions specifically set aside for disabled officers; and specialized assignments. Specialized assignments consist of all sworn officer assignments other than beat-patrol and modified-duty assignments.*About one half of the force work in “beat assignments.”

Six City of San Jose police officers with neck and back injuries that prevented them from serving as patrol officers sued the Department alleging that the Department placed them in “a small number of undesirable positions” and did not consider them for “special assignment” posts. This Department policy, they alleged, violated the ADA.

The Department's response: “public safety would be compromised if officers with physical limitations that prevented them from forcibly arresting suspects were permitted to perform more than the prescribed handful of modified duty jobs that had been made available to them.” According to the Department, the six officers did not qualify as “disabled” within the meaning of the ADA because:

1. They cannot perform the “essential functions” of the positions they seek because they could not effect a forcible arrest or subdue a fleeing suspect;

2. It would impose an “undue hardship” on the City to require it to accommodate the plaintiffs by waiving the disputed policies; and

3. The modified-duty assignment policy is a reasonable accommodation satisfying the ADA's mandate.

The Circuit Court disagreed, holding that the Department's policy violated the ADA. The court said that “relegating [the disabled officers] to unsatisfactory jobs in which they have little or no possibility for promotion simply cannot be reconciled with the ADA's 'clear and comprehensive national mandate' to eliminat[e] ... discrimination against individuals with disabilities.”

The Circuit Court decided that the ADA requires the employer to find ways to bring the disabled into its ranks, even when doing so imposes some costs and burdens. The San Jose Police Department, said the court, must participate in this process, as long as it can do so in a manner that will not compromise public safety.

The crux of the matter: was making a forcible arrests and subduing fleeing suspects an “essential function” of all specialized-assignment positions in the San Jose Police Department. According to the ruling, “an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function.” The Circuit Court concluded that a requirement that officers be physically capable of making forcible arrests does not reflect an essential function for all specialized assignment police officers.

In other words, the court ruled that the disabled officers were qualified individuals with a disability who, with or without reasonable accommodation, can perform the essential functions of the position that such individuals hold or desire, including, presumably, certain “special assignment.”

As examples, the decision notes that the disabled officers presumably would make good background investigators, good internal affairs investigators, and good recruiters or training officers, assignments that do not typically involve making forcible arrests or subduing fleeing suspects.

The bottom line: the Circuit Court ruled that there is a factual dispute as to whether the ability to make a forcible arrest is an essential function of all the specialized-assignment positions that the disabled officer seek the opportunity to fill, notwithstanding the job descriptions that the Department has prepared. In the words of the court:

We conclude that the [disabled officers] are not categorically unable to perform the essential functions of the “specialized assignments” they seek, even though they may be unable to make forcible arrests and subdue suspects. They are, rather, for purposes of this appeal, “qualified individual[s] with ... disabilit[ies].”

In another light duty case, Champ v Baltimore County, Md., [95-2061], the U.S. Circuit Court of Appeals, Fourth Circuit, ruled that a Baltimore County police officer who lost 100% of the use of his left arm was not entitled to a permanent light-duty assignment.

Significantly, the department defined the essential duties of a police officer as including the ability to make a forcible arrest, drive vehicles during an emergency and correctly aim a firearm while using two hands. Officer James Champ, who was severely injured in an off-duty motorcycle accident, could not show that he could perform any of these tasks.

In this unpublished decision, Judges Donald Russell, Sam Ervin III and William Wilkins Jr. said the ADA was not violated when the county placed Champ on disability retirement because he was not able to demonstrate he could perform the essential functions of the job of police officer, with or without reasonable accommodation.

In Stone v City of Mount Vernon, CA2, 96-7976, decided June 30. 1997, the U.S. Circuit Court of Appeals observed that the proper way to analyze the merits of a claim under the federal disability statutes is to focus on the fundamental job duties of the specific position an individual with a disability desires, rather than on the title .

* Specialized assignments are viewed as very desirable by department personnel. In consideration of this, the Department and San Jose Peace Officers Association negotiated an elaborate procedure for selecting personnel for these preferred jobs.

Employee terminated for forging superior’s signature on an official document

Employee terminated for forging superior’s signature on an official document

Dep’t of Education v. Bermel (in PDF) -  OATH Index No. 1332/11

A custodian was charged with forging a principal’s signature on an annual operation plan for cleaning a City school. 

OATH Administrative Law Judge John Spooner found that testimony from the principal and from a Department official proved the forgery and that the custodian filed the plan without permitting the principal to review it. 

The NYC Chancellor of Education adopted Judge Spooner’s recommended that the individual be dismissed.

Proposed Respect for Marriage Act of 2011 introduced in Congress

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.

On Tuesday, July 19, 2011, the White House announced President Obama's support for repeal of the Defense of Marriage Act (DOMA).  The DOMA defines marriage for purposes of federal benefits, including FMLA leave, as a union between one man and one woman.  DOMA limited the availability of FMLA leave to care for a spouse to heterosexual marriages, thereby excluding same sex marriages and civil unions.  In February of this year the Obama administration announced that it would not longer defend the constitutionality of the DOMA. The recent announcement would repeal the DOMA altogether.

The repeal of the DOMA is contained in the Respect for Marriage Act of 2011, S. 598 and H.R. 1116.  The House and Senate bills are identical. Both would repeal the section of the DOMA defining marriage as the union of one man and one woman.  In its place, the legislation propose the following language:

For purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individuals marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State. 

The proposed legislation defines a "State" to include the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

Mr. Bosland Comments: If enacted, the Respect for Marriage Act would require covered employers to permit FMLA leave to care for a same sex spouse, provided that the marriage was legally recognized in the State where the marriage was entered.  The Respect for Marriage Act does not set a national standard stating that same sex marriages are valid for purposes of the FMLA.  Rather, the Respect for Marriage Act requires employers to look to State law to determine if a marriage is valid.  Currently, a few states recognize same sex marriage.  Many states outlaw same sex marriage.  Some states recognize same sex civil unions or domestic partners, but not same sex marriages.  Because they do not have the same status as marriage, the Respect for Marriage Act as currently written would not require employers to grant FMLA leave to an employee to care for a domestic partner or spouse in a civil union.   

Combined with the Full Faith and Credit Clause of the Constitution, the Respect for Marriage Act requires covered employers with operations in states that do not recognize same sex marriage to nevertheless recognize those marriages as valid for FMLA leave purposes if the marriage was valid in the state where the marriage was entered.  

For example, a same sex couple were legitimately married in New York, a State that recognizes same sex marriage.  The couple thereafter moves to Mississippi for a job opportunity.  Lets assume that Mississippi does not authorize same sex marriages.  All things being equal (e.g., company is covered by the FMLA, employee is eligible for leave, condition meets one or more serious health condition definitions, proper notice and certifications provided, etc.), if the employee of this same sex marriage requests FMLA leave to care for their spouse with a serious health condition, the employer could not deny the leave simply because Mississippi does not recognize same sex marriages.  Because the marriage arose in New York, where it was valid when entered, the couple are married for purposes of FMLA leave.  The Company would process the leave request as it would any other FMLA leave request by an employee to care for a spouse.

Passage of the legislation in the Democrat controlled Senate is likely, even with their thin majority.   During the run-up to the Presidential election, it will be interesting to see how the legislation fares in the Republican-controlled House.  The framing of the bill as something of a States-rights issue may peel some Republicans off their otherwise expected rejection of the proposed legislation.  The Obama Administration's support of the repeal of the DOMA will also require the Republican Presidential hopefuls to state their position, which may also result in a few surprises.

Stay tuned!     

Senate bill is posted on the Internet at:

http://thomas.loc.gov/cgi-bin/query/C?c112:./temp/~c1120x92ET