Unemployment insurance - voluntarily leaving employment

Unemployment insurance - voluntarily leaving employment
LaClair v SUNY Research Foundation, 281 AD2d 677

Veronica A. LaClair challenged a determination by the Unemployment Insurance Appeals Board denying her unemployment insurance benefits on the grounds that she had voluntarily left her employment with the State University Research Foundation without good cause.

LaClair was employed as a part-time. She resigned from her position because she believed the Research Foundation would be unable to assign her a minimum of 20 hours of work per week. The decision notes that LaClair submitted her resignation “despite the employer's request that she delay her resignation while it attempted to adjust her work schedule.”

Affirming the Board's determination rejecting LaClair's application for benefits, the Appellate Division said that it is well settled that “dissatisfaction with the number of hours assigned by one's employer does not constitute good cause for resigning.” 

Vacating an arbitrator's award based on a finding it constituted a violation of public policy

Vacating an arbitrator's award based on a finding it constituted a violation of public policy
Nassau Co. v Sheriff's Officers Association, Supreme Court, Nassau County, Justice Ralph P. Franco, [Not selected for publication in the Official Reports], reversed, 294 AD2d 31

Vacating an arbitrator's award is not an easy task. Article 75 of the Civil Practice Law and Rules sets out the limited basis for overturning an arbitration award as follows:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except where the award is by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

(iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.

In addition, courts have vacated arbitration awards found to violate strong public policy.

This case arose as a result of Gemelli, a Nassau County corrections officer, being found guilty of assaulting an inmate under his care by a federal district court jury.

As a result the Sheriff terminated Gemelli from his position effective March 1, 1999. Gemelli filed a grievance challenging his dismissal and eventually the matter was submitted to arbitration.*

The Arbitrator made the following award:

1. The County's discharge of the grievant, Salvatore Gemelli, was not time barred.

2. The County did not have just cause to discharge Gemelli.

3. Gemelli shall, forthwith, be made whole for any wages and benefits lost, less any interim earnings, for the period of March 1, 1999, until Gemelli's retirement, effective May 27, 1999.

Nassau County brought an Article 75 action in an effort to vacate the arbitrator's award. The Sheriff's Officers Association, on the other hand, asked the court to confirm the award.

Justice Franco, after reading the arbitrator's decision and award, said:

1. An arbitration award shall be vacated where it is totally irrational or violative of strong public policy.

2. The arbitrator's award in this instance conflicts with strong public policy.

The court indicated that Gemelli, in exercising his responsibilities, was required to protect and care for this mentally retarded inmate under his care at the jail.

In contrast to Gemelli's actions, Justice Franco said that “[t]he inmate was to be protected by him, not assaulted by him as the jury found in the Federal trial.”

Turning to the arbitrator's holdings overturning Gemelli's termination, the court ruled that “[a]s his conduct was clearly a violation of public policy, he was justly discharged and is not entitled to be made whole for wages.”

The Appellate Division disagreed, concluding that at issue on this appeal is whether the arbitrator's award in this proceeding pursuant to CPLR Article 75 was violative of public policy. 

Because the petitioner County of Nassau failed in the Supreme Court to sustain its burden of demonstrating a strong and well-defined public policy with which the arbitrator's award conflicts, the Appellate Division reverse the order of the Supreme Court, deny the petition, and grant the cross motion to confirm the arbitrator's award.

* Gemelli retired while the disciplinary arbitration procedure was still  pending.

Giving an employee a “warning” is not an adverse personnel action within the meaning of New York’s Human Rights Law

Giving an employee a “warning” is not an adverse personnel action within the meaning of New York’s Human Rights Law

Carter v NYC Dept. of Corrections, CA2, 7 Fed. Appx. 99

In 1991 Charles Carter filed a complaint with the New York State Division of Human Rights (SDHR) that alleged racial discrimination in employment. He later filed an amended complaint to include retaliation.

Thereafter a number of events occurred, culminating in an appeal challenging the dismissal of the then pending discrimination action by a federal district court judge.

The surviving issue, and the subject of this appeal, involved Carter's allegation that disciplinary charges filed against him by the New York City Department of Corrections at various times during 1996 constituted unlawful retaliation for his filing discrimination complaints against the agency. As it turned out, the critical factor in resolving Carter's appeal was the fact that no final action was taken to resolve these disciplinary charges.

Considering the merits of Carter's claims of retaliation, the Circuit Court of Appeals said that Carter failed to establish a prima facie case of retaliation under Title VII based on the 1996 disciplinary charges.

According to the ruling: To establish a prima facie case for retaliation, a plaintiff must show that (1) the employee was engaged in a protected activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action.

Clearly, a causal connection can be established directly through evidence of retaliatory animus or “indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct.

However, said the court, Carter did not present evidence that DOC acted with “retaliatory animus” against him when it filed disciplinary charges or that it treated him in a different manner than any other employee who engaged in similar conduct. The court said that Carter's conclusory allegations that DOC brought the charges in an “overzealous” manner are insufficient to raise a triable claim.

Of significant importance in resolving this appeal, however, was the fact that none of the 1996 disciplinary charges brought against Carter were actually adjudicated or resulted in any punishment being imposed against him. Thus, said the Circuit Court, Carter is unable to show that he suffered an adverse employment action, a key element to showing a prima facie case of retaliation.

The decision notes that in Yerdon v Henry, 91 F.3d 370, the court ruled that the filing of charges against employee that were not adjudicated did not constitute retaliation.

In addition, the court pointed out that in Matter v Eastman Kodak Co., 104 F.3d 702, the Fifth Circuit Court of Appeals said that threats of termination, reprimands, hostility from fellow employees, and being placed on warning were not “ultimate employment decisions” and thus not “adverse employment actions.”

With regard to Carter's pre-1996 claims of unlawful discrimination, SDHR investigated Carter's claims and, by an opinion dated October 4, 1994, found no probable cause that DOC had discriminated against him.

The EEOC similarly concluded that Carter had not produced evidence of a Title VII violation. 

Pageviews of NYPPL by Operating Systems

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Pageviews of NYPPL by Operating Systems

Pageviews of NYPPL by Operating Systems

Source: Google Statistics

Google reports that last month readers accessed NYPPL using a variety of operating systems, the five most popular in use being:

Windows  10,685 (83%) Macintosh  838 (6%) Android  433 (3%) Linux  401 (3%) iPhone  256 (1%) 4% of NYPPL readers use various other operating systems.