Protected activities under the ADA

Protected activities under the ADA

Foster v Time Warner Entertainment Co., 250 F.3d 1189

The Foster decision demonstrates that an employer violates the ADA if it takes adverse action against a supervisor because he or she arranged for a reasonable accommodation of a disabled worker.

Jane M. Foster sued the Time Warner Entertainment Company. Foster complained that she was terminated for conduct protected by the Americans with Disabilities Act -- her providing a disabled worker under her supervision with a reasonable accommodation of his disability.

The jury agreed, finding that Time Warner had terminated Foster in retaliation for her belief that her actions constituted opposing unlawful discrimination under the ADA. Foster was awarded $75,000 in compensatory damages and $136,000 in punitive damages. The Eighth Circuit Court of Appeals affirmed the decision.

Foster had approved the request submitted by one of the employees she supervised, Kevin Terry, to be excused when he arrived to work late because he suffered from “nocturnal seizures due to epilepsy.” This, Terry said, made it difficult for him to arrive at work consistently on time in the morning because of his seizures. According to the decision, Terry subsequently made up for any lateness by “working late.”

Noting that Time Warner's Human Resources Manual included epilepsy in its definition of disability under the ADA and specifically mentioned a flexible schedule as an example of a reasonable accommodation, Foster approved Terry's request.

The Eighth Circuit said that in order to prevail on her retaliation claim, Foster “need not establish the conduct which she opposed was in fact discriminatory but rather must demonstrate a good faith, reasonable belief that the underlying conduct violated the law.”

What was the “underlying conduct” in this case? Foster's superiors changed the work rules barring the type of accommodation she had approved for Terry.

Proof for a retaliation claim is not the same as that required in a direct claim of disability discrimination, said the court.

According to the decision, Foster consulted Time Warner's manual in the course of dealing with Terry, and it listed epilepsy as a disability protected under the ADA, and it included a modified work schedule as an example of a reasonable accommodation.

The evidence showed that Foster's previous supervisor, Cathy Hill, had provided Terry with that type of accommodation. When Snyder succeeded Hill and issued a new sick leave policy, Foster repeatedly asked how she should accommodate Terry because she believed the new policy conflicted with the manual. The Circuit Court also noted that “there was sufficient evidence that Snyder admitted to Foster that Terry was covered by the ADA.”

Although there was conflicting evidence presented by Time Warner, the jury chose to believe the proof offered by Foster. Foster's evidence, said the court, was sufficient for the jury to find that Foster had an objectively reasonable belief that Time Warner was intentionally violating the ADA when it decided to terminate Terry as well as when it subsequently fired Foster because of her approval of Terry's request and her challenge to the “new policy.”

There also was evidence that at the meeting at which Foster was terminated she showed her superiors the company manual listing epilepsy as a protected condition under the ADA and that it listed a flexible schedule as a reasonable accommodation.

Thus, said the Circuit Court, Foster established a temporal connection between her requests for accommodating Terry's disability and her termination, permitting an inference of retaliation.

As to Time Warner's challenge to Foster's being awarded punitive damages, the Eighth Circuit commented that punitive damages are appropriate if an employer engaged in intentional discrimination with “malice or reckless indifference to [Foster's] federally protected rights,” citing the U.S. Supreme Court's ruling in Kolstad v American Dental Association, 527 US 526.

According to the decision, Foster's superiors -- whom Time Warner conceded were managers -- “knew and admitted that Terry was covered by the ADA and that the company's own manual listed a flexible schedule as a reasonable accommodation.” Malice may be imputed to the employer if the employee who committed the unlawful act is serving in a “managerial capacity” and “acting within his or her scope of employment.

Part-time service does not qualify as “probationary service” for tenure purposes

Part-time service does not qualify as “probationary service” for tenure purposes

Roese v South Country CSD, 283 AD2d 580

Sonja Roese sued the South Country Central School District in an effort to regain her job as a probationary school librarian after the district had advised her that she was to be terminated. Finding that Roese had been terminated from her position as a probationary school librarian with proper notice before her three-year probationary period ended, the Appellate Division, Second Department dismissed her appeal.

Roese had contended that she had acquired tenure by estoppel because her work as a school librarian during the period from 1991 to 1993, which was designated “part-time” work, was in reality full-time work. Thus, she argued, her service during this period should have counted toward tenure.

Clearly, said the court, “part-time teaching service does not constitute probationary service for the purpose of acquiring tenure,” citing Rosenberg v Board of Education of Westbury Public Schools, 51 AD2d 551.

Holding that “[u]nder the facts and circumstances of this case, [Roese's] work during the period from 1991 to 1993 was part-time,” the court ruled that she did not acquire tenure by estoppel.

Misusing an ability to access confidential information in employer’s database

Misusing an ability to access confidential information in employer’s database

Conflicts of Interest Bd. v. McNair (in PDF), OATH Index No. 1114/11

OATH Administrative Law Judge Faye Lewis found that the employee had violated the City Conflicts law by using her City position of eligibility specialist to access confidential information from the agency’s database.

Judge Lewis found that the employee was using the information to harass a woman she believed was having an affair with her husband.

The employee did not appear at the trial and thus did not offer any evidence in mitigation or explanation.*

The New York City Conflicts of Interest Board a $7,500 fine, as recommended by ALJ Lewis

* Courts have held that the employer may proceed with a disciplinary action even though the employee is not present. The hearing may proceed and the employee tried in absentia provided the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate. The charging party has the burden of proving the allegations notwithstanding the absence of the individual from the proceeding.

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Office of the Governor

Noting that the new five-year contract avoids the need for broad layoffs while meeting tough fiscal demands, Governor Andrew M. Cuomo and CSEA President Danny Donohue today announced that members of the Civil Service Employees Association (CSEA) have ratified the five year labor contract agreed to in June by CSEA leadership and the Cuomo administration. The agreement marks a milestone accomplishment for collective bargaining and labor-management cooperation in New York State.

The contract includes provisions to keep CSEA-represented state employees on the job delivering essential services to New Yorkers. The new contract freezes base wages for the first three years, and then allows for retention payments – totaling $1,000 – as well as salary increases in each of the last two years. It also calls for a redesign of the employee health care contribution and benefit system.

The terms of the agreement will take effect immediately as the State Legislature already approved the agreement contingent on the CSEA ratification.*

Key elements of the Collective Bargaining Agreement

Base Wages: Under the five-year agreement, there will be no general salary increase in Fiscal Year 2011-12; 2012-13; 2013-14. Employees will receive a 2 percent increase in 2014-15 and 2015-16.

2011-12	2012-13	2013-14	2014-15	2015-16
0%	0%	0%	2%	2%

Health Care System Redesign: The agreement includes a series of reforms in the employee health care system. If adopted by all bargaining units, these reforms would save $1.27 billion. The components of the health system redesign are:

Health Care Contributions: The agreement includes substantial changes to employee health care contributions bringing public employee benefits more in line with the private sector. The agreement reflects a two percent increase in contributions for Grade 9 employees and below, and a six percent increase for Grade 10 employees and above. (Under the agreement, for example, the state will pay 69 percent of family coverage for a Grade 10 employee and above, and the employee will pay 31 percent. The prior split was 75 percent state/25 percent employee. For individual coverage, a Grade 10 employee and above will pay 16 percent and the state share will be 84 percent. The prior split was 10 percent employee/90 percent state).

Health Care Opt Out: For the first time, the state is offering an opt-out option. Health care premiums cost $16,600 for family coverage and $7300 for individual coverage. Employees electing to opt out of the health insurance program must provide proof of alternative coverage and will receive $1000 or $3000 for the cessation of individual or family coverage, respectively.

Health Benefit Redesign: The health benefit plan system of co-pays, deductibles, and programs has been redesigned to encourage healthy choices and control costs of pharmaceutical products. For example, for the first time the plan will cover the use of nurse practitioners and "minute clinics" and encourage employees to use these services when appropriate instead of hospital emergency rooms.

Deficit Reduction Leave: Under the agreement, employees will take a five day unpaid deficit reduction leave during fiscal year 2011-12 and four days unpaid leave during fiscal year 2012-13. The value of the days taken not worked will be deducted from employee pay over the remaining pay periods equally during the fiscal year in which they are taken. Employees will be repaid the value of the 4 days from 2012-13 in equal installments starting at the end of the contract term.

Performance advances, longevity and retention payments: Performance advances and longevity payments will continue to be in effect. Current employees who remain active through 2013 will earn a onetime retention payment of $775 in 2013 and $225 in 2014 in recognition of working without a wage increase for three years.

Patient Abuse Reforms: Both CSEA and the State agree that the system in place for investigating allegations of abuse of patients at state facilities does not adequately protect our most vulnerable population in state care. While CSEA employees are dedicated caretakers, allegations of abuse must be dealt with thoroughly. Under the new contract, the State and CSEA will take a number of steps to improve the quality of care, including creating a completely new Select Panel on Patient Abuse with A-list arbitrators and creating a table of penalties for increasingly severe acts of misconduct, along with a number of other reforms.

Review of Temporary Employees: The State and CSEA will form a joint committee to review the use of temporary employees and contractors and make recommendations to the Division of Budget and Department of Civil Service.

Layoff Protection: CSEA employees will receive broad layoff protection for fiscal year 2011-12 and 2012-13 arising from the $450 million budget gap. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the State's fiscal circumstances are not covered by this limitation.

* Civil Service Law §204-a.provides, in pertinent part, that a collective bargaining agreements between public employers and employee organizations include the following provision:

1. Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in type not smaller than the largest type used elsewhere in such agreement: "It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval [emphasis supplied].

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Office of the Governor

Noting that the new five-year contract avoids the need for broad layoffs while meeting tough fiscal demands, Governor Andrew M. Cuomo and CSEA President Danny Donohue today announced that members of the Civil Service Employees Association (CSEA) have ratified the five year labor contract agreed to in June by CSEA leadership and the Cuomo administration. The agreement marks a milestone accomplishment for collective bargaining and labor-management cooperation in New York State.

The contract includes provisions to keep CSEA-represented state employees on the job delivering essential services to New Yorkers. The new contract freezes base wages for the first three years, and then allows for retention payments – totaling $1,000 – as well as salary increases in each of the last two years. It also calls for a redesign of the employee health care contribution and benefit system.

The terms of the agreement will take effect immediately as the State Legislature already approved the agreement contingent on the CSEA ratification.*

Key elements of the Collective Bargaining Agreement

Base Wages: Under the five-year agreement, there will be no general salary increase in Fiscal Year 2011-12; 2012-13; 2013-14. Employees will receive a 2 percent increase in 2014-15 and 2015-16.

2011-12	2012-13	2013-14	2014-15	2015-16
0%	0%	0%	2%	2%

Health Care System Redesign: The agreement includes a series of reforms in the employee health care system. If adopted by all bargaining units, these reforms would save $1.27 billion. The components of the health system redesign are:

Health Care Contributions: The agreement includes substantial changes to employee health care contributions bringing public employee benefits more in line with the private sector. The agreement reflects a two percent increase in contributions for Grade 9 employees and below, and a six percent increase for Grade 10 employees and above. (Under the agreement, for example, the state will pay 69 percent of family coverage for a Grade 10 employee and above, and the employee will pay 31 percent. The prior split was 75 percent state/25 percent employee. For individual coverage, a Grade 10 employee and above will pay 16 percent and the state share will be 84 percent. The prior split was 10 percent employee/90 percent state).

Health Care Opt Out: For the first time, the state is offering an opt-out option. Health care premiums cost $16,600 for family coverage and $7300 for individual coverage. Employees electing to opt out of the health insurance program must provide proof of alternative coverage and will receive $1000 or $3000 for the cessation of individual or family coverage, respectively.

Health Benefit Redesign: The health benefit plan system of co-pays, deductibles, and programs has been redesigned to encourage healthy choices and control costs of pharmaceutical products. For example, for the first time the plan will cover the use of nurse practitioners and "minute clinics" and encourage employees to use these services when appropriate instead of hospital emergency rooms.

Deficit Reduction Leave: Under the agreement, employees will take a five day unpaid deficit reduction leave during fiscal year 2011-12 and four days unpaid leave during fiscal year 2012-13. The value of the days taken not worked will be deducted from employee pay over the remaining pay periods equally during the fiscal year in which they are taken. Employees will be repaid the value of the 4 days from 2012-13 in equal installments starting at the end of the contract term.

Performance advances, longevity and retention payments: Performance advances and longevity payments will continue to be in effect. Current employees who remain active through 2013 will earn a onetime retention payment of $775 in 2013 and $225 in 2014 in recognition of working without a wage increase for three years.

Patient Abuse Reforms: Both CSEA and the State agree that the system in place for investigating allegations of abuse of patients at state facilities does not adequately protect our most vulnerable population in state care. While CSEA employees are dedicated caretakers, allegations of abuse must be dealt with thoroughly. Under the new contract, the State and CSEA will take a number of steps to improve the quality of care, including creating a completely new Select Panel on Patient Abuse with A-list arbitrators and creating a table of penalties for increasingly severe acts of misconduct, along with a number of other reforms.

Review of Temporary Employees: The State and CSEA will form a joint committee to review the use of temporary employees and contractors and make recommendations to the Division of Budget and Department of Civil Service.

Layoff Protection: CSEA employees will receive broad layoff protection for fiscal year 2011-12 and 2012-13 arising from the $450 million budget gap. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the State's fiscal circumstances are not covered by this limitation.

* Civil Service Law §204-a.provides, in pertinent part, that a collective bargaining agreements between public employers and employee organizations include the following provision:

1. Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in type not smaller than the largest type used elsewhere in such agreement: "It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval [emphasis supplied].