ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

Aug 15, 2011

Employee dismissed for alleged sexual harassment disqualified for unemployment insurance benefits Matter of Ferro, 283 AD2d 828


Employee dismissed for alleged sexual harassment disqualified for unemployment insurance benefits
Matter of Ferro, 283 AD2d 828


The Ferro decision demonstrates that engaging in sexual harassment will disqualify an employee for unemployment insurance benefits if he or she is terminated as a result of such misconduct.

Albert J. Ferro was dismissed from his position for allegedly violating his employer's policy prohibiting sexual harassment. According to the decision, a witness testified that he had observed Ferro, a management trainee, grab a female employee from behind and then acted in a sexual manner. This resulted in Ferro being fired from his position.

Ferro's application for unemployment insurance benefits was rejected. The Unemployment Insurance Appeals Board ruled that Ferro was ineligible for unemployment insurance benefits because his employment was terminated due to his misconduct. The Appellate Division, Third Department, sustained the Board's determination. The court pointed out that “offensive behavior in the workplace can constitute disqualifying misconduct ... as can conduct that is detrimental to the employer's interest.”

The rationale underlying the ruling: employers may be held “vicariously liable” as the result of the sexual harassment of subordinates by its management employees. Accordingly, such misconduct “is detrimental to the employer's interests.”

The date on which a statute of limitations commences "running" depends on the nature of the challenge to an administrative action


The date on which a statute of limitations commences "running" depends on the nature of the challenge to an administrative action
Roenke v SUNY, 284 AD2d 781

Whether or not an Article 78 action appealing a particular administrative decision is timely depends on the nature of the action being challenged, as the Roenke case demonstrates.

In December 1997, SUNY advised Henry M. Roenke, that effective January 1, 1998, it would no longer would permit him to make contributions to his tax deferred custodial account although it would allow him to make contributions to various tax sheltered annuities. Roenke objected, but his August 1998 petition seeking a court order compelling SUNY to designate a company or companies from which he could purchase shares in a tax deferred custodial account was dismissed as untimely. He appealed, contending that his petition was, in fact, timely filed because it was submitted within four months of SUNY's rejection of his demand that SUNY reinstate purchasing such shares.

According to the Appellate Division, if Roenke's action was in the nature of mandamus to compel SUNY to perform a statutory duty, the Statute of Limitations does not begin to run until an appropriate demand is made and refused. If, on the other hand, Roenke’s petition involves a challenge to a discretionary act by SUNY rather than its complying with a statutory duty, the Statute of Limitations begins to run from the date that the determination became final and binding upon on him.

Roenke's basic argument: Section 399 of the Education Law mandates that SUNY promulgate a list of companies from which shares in a custodial account may be purchased. The Appellate Division disagreed, holding that because there was nothing in Section 399 compelling SUNY to establish custodial account programs in the first instance, establishing such a program was clearly a discretionary action on the part of SUNY.

The opinion notes that the fact “[t]hat SUNY is permitted but not required to establish such programs is made even clearer by the language contained in Education Law Section 399(2), which begins, “[w]here the employer has established a special annuity and/or custodial account program authorized by this article”.

Accordingly, said the court, the four-month Statute of Limitations for challenging SUNY's administrative decision to discontinue making contributions to Roenke's custodian account effective January 1, 1998 began to run when Roenke was told of this change in December 1997. Thus, said the court, Roenke's filing his complaint in August 1998 “was plainly is time barred.” 

Determining if a disability was “job related”


Determining if a disability was “job related”
Roach v McCall, 284 AD2d 746

V. Robert Roach, Town of Webb Union Free School District head bus driver, applied for accidental disability retirement benefits based on injuries to his right shoulder he claimed resulted from employment-related accidents in 1985, 1995 and 1996. These accidents, he contended, incapacitated him from performing his head bus driver duties. The Comptroller rejected Roach's application after concluding that his condition did not result from employment-related accidents.

John Cambareri, a board-certified orthopedic surgeon, testifying on behalf of the State and Local Employees' Retirement System, said that, in his opinion, Roach's disability was the result of traumatic arthritis in his right shoulder stemming from a shoulder dislocation suffered by Roach as a teenager. Understandably, Roach's expert medical witnesses testified to the contrary.

The Appellate Division sustained the Comptroller's rejection of Roach's application, holding that where there is substantial evidence to support his decision, “it lies within the exclusive authority of the Comptroller to evaluate divergent medical opinions in the process of determining whether a claimant is entitled to accidental disability retirement benefits.”

Aug 13, 2011

Decisions of interest involving Government and Administrative Law


Decisions of interest involving Government and Administrative Law
Source: Justia August 12, 2011

Decisions of interest involving Government and Administrative Law


Decisions of interest involving Government and Administrative Law
Source: Justia August 12, 2011
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NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.

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