An arbitration award may be confirmed despite the non-appearance of a party in an Article 75 proceeding

An arbitration award may be confirmed despite the non-appearance of a party in an Article 75 proceeding

Saunders v City of New York, 283 AD2d 213

The lesson of the Saunders case is that if a party wishes to oppose an Article 75 motion to confirm an arbitration award, it had better appear before the court or it will run the risk of being the target of a default judgment.

A Supreme Court justice confirmed an arbitration award in favor of Lee Saunders, requiring the City of New York to pay him $15,000 in severance pay. The award was confirmed as a result of “default” after the City failed to appear at the Article 75 proceeding to object.

The City's motion to vacate the award was denied by Supreme Court and the City appealed. The Appellate Division affirmed the lower court's action, noting that the City's motion to vacate its default was properly denied in view of the City's failure to set forth a reasonable excuse for its repeated failure to appear and provide any meritorious defense to the courts confirming the arbitration award in Saunder's favor.

According to the ruling, the City did not appear at four scheduled court dates. Despite “its attorney's personal assurances to the court that there would be no default on the fifth court date,” marked final by the court, the City again failed to appear on that occasion as well.

This conduct, said the Appellate Division, “evincing such a complete lack of regard for the court and the legal process,” is not excusable.

In addition, said the court, “it is plain that [City] has no meritorious defense to confirmation of the subject arbitration award,” commenting that the arbitrator's award of $15,000 in severance pay in accordance with the terms of a severance incentive program agreement is supported by the record.

In any event, an arbitrator's award “will not be vacated even though ... his interpretation of the agreement misconstrues or disregards its plain meaning or misapplies substantive rules of law, unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation on his power.” None of these elements, said the court, were relevant in this case.

Appointment as a coach

Appointment as a coach

Decisions of the Commissioner of Education, 14,504

Rita Magee was employed by the Coxsackie-Athens Central School District as a certified physical education teacher. Magee applied for a vacant field hockey coaching position in the district. The district selected another individual, Donald Daoust, for the position.

Contending that Daoust “has neither a New York State teaching certificate nor a temporary coaching license,” Magee filed an appeal challenging the district's action with the Commissioner of Education.

Although the Commissioner dismissed Magee's appeal as moot -- the field hockey season had ended before he had an opportunity to consider the matter -- he commented that:

1. A school district may employ an uncertified individual as a coach only when a certified physical education teacher or certified teacher with coaching qualifications and experience is unavailable; and

2. An uncertified individual may not undertake his or her coaching responsibilities until he or she has actually received a temporary license.

The decision specifically noted that “[t]he mere application for that license by the district does not qualify the prospective coach for his or her duties.”

New York State's Marriage Equality Act

New York State's Marriage Equality Act

Source: New York State Department of Civil Service GENERAL INFORMATION BULLETIN No. 11-04

On August 25, 2011, Acting Commissioner Patricia A. Hite distributed the New York State Department of Civil Service"s GENERAL INFORMATION BULLETIN No. 11-04 to all department and agency human resource personnel and affirmative action officers; and agency counsels.

The text of Bulletin #11-04 is set out below:

“As you are aware, the Marriage Equality Act, signed by Governor Cuomo, became effective July 24, 2011. The Act amends the Domestic Relations Law to provide that a marriage that is otherwise valid shall be valid in New York regardless of whether the parties to the marriage are of the same or different sex. No State government employee shall be treated differently with respect to the rights, benefits, privileges, protections or responsibilities relating to marriage based upon their spouse being of the same sex or a different sex.

“Since April 2007, the Department has extended recognition to same-sex spouses in legal marriages from other jurisdictions for purposes of spousal benefits under NYSHIP. Additionally, in light of several court decisions and consistent with State policy, the Department conducted a review of state statutes, policy statements and regulations to ensure that terms such as "spouse", "husband" and "wife" are construed in a manner that encompasses legally executed marriages between same-sex couples. With the enactment of the Marriage Equality Act, individuals of the same sex may be lawfully married and may not lawfully be denied any State government right, benefit, protection or privilege. If you are aware of any policy or regulation relating to employment with the State which continues a distinction based upon whether parties to a marriage are of the same or a different sex, please bring it to the attention of the Department immediately.

“If you have any questions concerning health benefits for same sex spouses, please contact Mary Frye, Assistant Director of the Employee Benefits Division of the Department of Civil Service, at (518) 485-1771. 

"For any other employment related questions or concerns, please call Mark Worden in Counsel's Office of the Department of Civil Service at (518) 457-2624.”

Destruction of records that may be relevant in pending litigation

Destruction of records that may be relevant in pending litigation

Byrnie v Town of Cromwell Board of Education, CA2, 243 F.3d 93

EEOC regulation implementing Title VII [42 USC 2000e-8(c)] requires “every employer ... subject to this subchapter” to “(1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, [and] (2) preserve such records for [two years].” As the Byrnie decision demonstrates, an employer's failure to retain these records for the minimum period required may become a critical element in the course of litigation.

Judge Rosemary S. Pooler said that “where, as here, a party has violated an EEOC record-retention regulation, a violation of that regulation can amount to a breach of duty necessary to justify a spoliation inference in an employment discrimination action.” *

64-year-old Robert F. Byrnie claimed that the district rejected him for part-time employment as an art teacher because of his age and gender. He sued, alleging violations of Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and Title IX of the 1972 Education Amendments.

Although the district court dismissed his claims, the Circuit Court of Appeals reversed part of the lower courts ruling as inappropriate under the circumstances.

According to the court, Byrnie “easily” established a prima facie case of age discrimination. Judge Pooler commenting that while the job was given to an applicant who was 42 years of age -- a person in the “protected class” set out in the Age Discrimination in Employment Act, “the fact that the replacement is substantially younger than [Byrnie] is a more valuable indicator of age discrimination than whether or not the replacement was over 40.”

Since “the [district's] justification for not hiring Byrnie, on its face, raises credibility problems,” -- he had been a substitute at Cromwell for five years and was often asked to take over classes for extended periods. This, coupled, with the destruction of records required to be retained by EEOC regulations, indicates that the district court was incorrect in granting the district's motion for summary judgment dismissing Byrnie's age discrimination complaint.

The decisions states that “[t]he credibility of the Search Committee is not helped by the fact that it needed to relax the educational requirements of the position in order for [the successful candidate] to survive” initial screenings of applications filed by interested candidates for the position by the district, “let alone be selected as the most deserving of an interview.” In addition, courts have recognized that an employer's disregard or misjudgment of a plaintiff's job qualifications may undermine the credibility of an employer's stated justification for an employment decision.

Spoliation, said the court, “can support an inference that the evidence would have been unfavorable to the party responsible for its destruction” especially when federal regulations required the employment-related documents destroyed be retained for two years.

The reasons underlying the adoption of such an inference:

1. It serves to deter parties from destroying evidence;

2. It places the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and

3. It restores the party harmed by the loss of evidence potentially helpful to its case to where the party would have been in the absence of spoliation.

The ruling also commented that the district did not claim that the records had been accidentally destroyed -- they were disposed in compliance with its policy of destroying such records soon after the hiring process was completed. This, said the court, constituted evidence “of intentional destruction sufficient to show a culpable state of mind on Cromwell's part.”

The lesson here: retain all records for the minimum period required by law, and longer if litigation is pending.

* Spoliation is the destruction or significant alteration of evidence. Courts usually view such destruction as evidence that the records that are destroyed contain material that would not be helpful to the party responsible for the spoliation.

Dissatisfaction with work schedules does not equal lack-of-work

Dissatisfaction with work schedules does not equal lack-of-work

Blankenship v Comm. of Labor, 282 AD2d 861

Sometimes a public employer finds it necessary to hire a substitute to cover for an employee who is absent due to illness. This was the case when a school district hired Linda J. Blankenship as a full-time [eight hours per day] per diem substitute cleaner to cover for a full-time employee who was on disability leave.

When the employee returned from disability leave, Blankenship's workday was adjusted in accordance with the employer's need to cover positions because of vacations or other absences of permanent employees. Essentially Blankenship was scheduled to work full-time during the summer due to vacation schedules. When the school year resumed her hours were reduced to four hours a day.

Dissatisfied with the change in her work schedule, Blankenship left the district and filed a claim for unemployment insurance benefits. She indicated that “lack of work” was the reason for her leaving the district's employ. The Unemployment Insurance Appeals Board rejected Blakenship's claim for unemployment insurance benefits on the ground that she voluntarily left her employment without good cause.

The Appellate Division sustained the Board's finding that Blankenship's “dissatisfaction with her reduced hours in accordance with the needs of the school district did not constitute good cause for leaving her employment” as supported by substantial evidence.

In addition, the court approved the Board's ordering the “recoverable overpayment of benefits.”