Involuntary random drug testing based on history of illegal drug use not disparate treatment for the purposes of Title VII

Involuntary random drug testing based on history of illegal drug use not disparate treatment for the purposes of Title VII

 Mack v The Port Authority of New York and New Jersey, USDC, SDNY, Judge Swan

One of the issues considered by Judge Swan in the Mack case was Michael Mack's allegation that he was subjected to disparate treatment in violation of Title VII because he was an African-American. Mack alleged that he was required to submit to an involuntary random test for illegal drugs because of his color. Mack also claimed that after he submitted to a random drug test and tested positive for cocaine, the Authority told him that he would be terminated.

According to the decision, Mack was employed as a truck driver by the Authority and was required to posses a valid commercial driver's license in order to perform the duties of his position. Authority employees such as Mack are required to submit to random drug tests under the federal Omnibus Transportation Testing Act of 1991.

On July 6, 1996, Mack was tested for drugs and tested positive for cocaine. Mack and the Authority settled the matter by entering into an agreement that required Mack to submit to random drug testing for a period of sixty months and to enter a drug rehabilitation program. The agreement also provided that if Mack tested positive again, he would be subject to "administrative action."

When Mack again tested positive for cocaine on November 10, 1997, the Authority told him that his employment would be terminated effective November 17, 1997, because of the positive drug test.

Mack's union negotiated a second "disciplinary waiver agreement" and Mack agreed that he would be subject to random drug testing for sixty months and that he would cooperate with the Port Authority's Office of Medical Services. The agreement also stated that Mack's failure to comply with these obligations could result in his termination and that one positive test result would result in his termination.

On May 6, 1998, Mack was asked to submit a urine sample to the Medical Services nurse. When the sample provided proved "unusable," he was asked to supply a second sample. Mack refused to do so and, as a result of this refusal, he was terminated.

Judge Swan granted the Authority's motion to dismiss the complaint, commenting that Mack failed to allege facts sufficient for the court to find that it was the custom or practice of the Port Authority to treat him or other non-white employees differently from non-black employees when imposing sanctions for failure to pass a urine test for illegal drugs.

According to the ruling, Mack presented only conclusory allegations that "race was the determining factor in [his] termination" and thus failed to establish a prima facie case of "wrongful termination."

Arbitrator’s award entitled to great weight by is not preclusive

Arbitrator’s award entitled to great weight by is not preclusive

Pender v District Council 37, AFSCM, USDC, SDNY, 2002 WL 31164470

Among the issues considered by Federal District Court Judge Chin in the Pender case was the amount of weight to be given to an arbitration award by the court in a lawsuit involving essentially the same complaint and the same parties that were earlier considered by an arbitrator.

Judge Chin's conclusion: the arbitrator's decision "is but one piece of evidence -- albeit an important piece ... entitled to great weight -- to be considered in the context of the entire record."

Patricia A. Pender complained that her former employer, District Council 37 of the American Federation of State, County and Municipal Employees [DC-37], violated the Americans with Disabilities Act and New York States Human Rights Law when it fired her because of her disability. She filed a grievance protesting her dismissal and ultimately the matter was submitted to arbitration.

While the grievance arbitration proceeding was pending, Pender filed a charge of discrimination with the Equal Employment Opportunity Commission against DC-37, alleging that DC-37 had unlawfully discrimination against her because of her disability. Pender received a right-to-sue letter from the EEOC on April 25, 2000. By this time, the arbitrator had issued her award, rejecting Pender's grievance. DC-37 asked Judge Chin to dismiss Pender's complaint, contending that the arbitration award was preclusive and thus there was nothing left for the court to determine.

Judge Chin ruled that in this situation the arbitrator's decision was entitled to great weight, but not preclusive weight. She found that Bonnie Siber Weinstock, "an experienced labor arbitrator, conducted the grievance arbitration, at which the both Pender and DC-37 presented documentary and testimonial evidence and examined and cross-examined witnesses under oath."

Weinstock, said the court, issued a 23-page opinion and award, rejecting Pender's grievance and finding that DC-37 did not violate the collective bargaining agreement when it terminated Pender's employment because she was unable to perform the duties and responsibilities of a DC-37 Council Representative, even with reasonable accommodations. Noting that the arbitrator had specifically addressed Pender's ADA claim "on the merits" and had assumed that Pender had a "disability" within the meaning of the ADA.

In making her decision, Judge Chin said that the arbitrator concluded that Pender "was unable to perform the essential functions of a Council Representative with or without an accommodation."

Why was the arbitrator's decision entitled to great weight? Because, said the court, the issue before the arbitrator was largely one of fact, well suited for resolution in the traditional labor arbitral format -- whether Pender could perform the essential functions of the Council Representative position -- and the arbitrator gave full consideration to Pender's ADA claim.

As Weinstock's decision was entitled to great weight and since "no jury could reasonably conclude, on the basis of the record before the Court that Pender's rights under the ADA and New York law were violated," Judge Chin dismissed her petition.

In considering DC-37's motion to dismiss Pender's complaint, Judge Chin reviewed the role of arbitration decisions in civil rights litigation in the light of "three leading Supreme Court decisions" addressing this issue: Alexander v Gardner-Denver Co., 415 US 36; Gilmer v Interstate/Johnston Lane Corp., 500 US 20; and Wright v Universal Maritime Service Corp., 525 US 70.

In Gardner-Denver, the Supreme Court ruled that a union employee "does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement."

In Gilmer, the Supreme Court said that mandatory arbitration clauses are enforceable and that an employee could waive his or her right to bring federal statutory claims to court.

In the Wright case, the Supreme Court decided that even assuming a collective bargaining agreement arbitration clause is enforceable to compel arbitration of an employee's statutory discrimination claim, such a clause would only be enforced if it was "particularly clear" that it was intended to cover such claims.

Considering these three rulings, Judge Chin concluded that in this instance the arbitration procedure satisfied the several concerns set out by the Supreme Court. The bottom line: although Weinstock's decision was not entitled to preclusive effect, it was entitled to "great weight." The “weight” issue for the court to determine:

Considering the arbitration award together with all the evidence in the record, would a reasonable jury find for Pender on the issue of discrimination? In Judge Chin's view the answer was no and this finding required the court to dismiss Pender's petition.

Judge Chin commented that the collective bargaining agreement in effect furnished full statutory protections, as it provided that "[t]he employer shall comply with all applicable law in the area of non-discrimination in employment practices" and the "degree of procedural fairness in the arbitral forum was high."

Recreation Specialist terminated after being found guilty of selling an alcoholic beverage to a minor

Recreation Specialist terminated after being found guilty of selling an alcoholic beverage to a minor 

Matter of Emmerling v Town of Richmond, 2011 NY Slip Op 06690, Appellate Division, Fourth Department

Craig J. Emmerling file an Article 78 action in an effort to obtain a court order annulling the Town of Richmond terminating him from his position as a Recreational Specialist.

Emmerling was charged with, and found guilty of, selling an alcoholic beverage to a minor in violation of Penal Law §260.20(2). He contended that the Town’s imposing the penalty of dismissal termination following a Civil Service Law §75 disciplinary hearing constituted an abuse of discretion by the Town.

The Appellate Division disagreed, ruling substantial evidence supports the determination in view of the fact that his duties involved extensive contact with children and that he had been told that he was required to act as a role model for them.

Citing the so-called “Pell Doctrine” [Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the court ruled that the penalty of termination “is not so disproportionate to the offense, in light of all of the circumstances, as to shock one's sense of fairness.” 

Termination of an individual holding a public office “at-will”

Termination of an individual holding a public office “at-will”

Matter of Scro v Board of Education of Jordan-Elbridge Cent. School Dist., 2011 NY Slip Op 06738, Appellate Division, Fourth Department

Anthony Scro challenged his termination as the school district’s treasurer contending that such action violated his right to due process right. He obtained a court order from Supreme Court, Onondaga County annulling his termination and directing the school district to reinstate him to his former position.

The Appellate Division reversed the lower court “on the law” and dismissed Scro’s petition.

The court said that it agreed with the school district and the New York State School Boards Association, Inc.* that, under Education Law §2130(4), Scro was an at-will employee who was not entitled to pre-termination due process. 

The Appellate Division noted that although Education Law §2130(4) provides in relevant part that "[t]he board of education in every union free school district … shall appoint a district treasurer … who shall hold office during the pleasure of the board," it applies with equal force to central school districts such as the Jordan-Elbridge Central School District.

As Saco held office “during the pleasure of the board," the Board of Education had the right to discontinue his services at any time. Thus, said the Appellate Division, Saco “was the equivalent of an at-will employee” inasmuch as he served at the pleasure of' the Board of Education and was not entitled to “pre-termination due process.”

Focusing on another aspect of the case, the Appellate Division said that it agreed the school district that Saco, having failed to file his oath of office within 30 days of his being given notice of his appointment as required by Public Officers Law §30(1)(h), the office to which he had been appointed “automatically became vacant” and "no hearing on charges was required to dismiss him from office."**

Public Officers Law §30(1)(h), in pertinent part, provides that should an individual appointed to the position refuse or neglect to file his official oath or undertaking, within thirty days after notice of his or her appointment such “office shall be vacant … before the expiration of the term thereof….”

* New York State School Boards Association, Inc. filed an amicus curiae brief in support of the Jordan-Elbridge Cent. School District arguing that Scro served as an at-will employee and thus was not entitled to pre-termination hearing.

**  See, also, Informal Opinions of the Attorney General 84-17 in which the Attorney General indicated that in the event an oath of office required by law is not timely filed, the office “becomes vacant by operation of law.”

Determining an individual’s “final average salary” for retirement allowance purposes

Determining an individual’s “final average salary” for retirement allowance purposes

Weingarten v NYC Teachers' Retirement System, Ct. of Appeals, 98 N.Y.2d 575

Rhonda Weingarten was employed in the New York City school system. In addition to receiving her base annual salary, she also received hourly compensation -- referred to as "per session" compensation -- for the additional service she provided to the school district. The issue to be resolved in Weingarten’s lawsuit: may these additional earnings be added to the teachers' pensionable salary base for the purpose of determining their final averages salary for retirement purposes or are they barred by the provisions of Section 431 of the Retirement and Social Security Law?

The collective bargaining agreement between the teachers and the New York City Board of Education defines "per session work" as including such assignments as teaching summer school, teaching evening or adult education classes, or working with various athletic and non-athletic extracurricular programs.

Teachers apply these positions and may participate in only one such activity at a time. The teachers are required to submit separate time sheets for their "per session work" and receive payment for their per session work via checks issued in addition to their regular payroll checks.

In the early 1990s, teachers demanded that their "per session" compensation be included in determining their final average salary. The New York City Teachers' Retirement System [NYCTRS] refused consider per session earnings as pensionable compensation.

Weingarten sued NYCTRS, seeking a court decision holding that the System's exclusion of this income from a teacher's base salary calculation for retirement purposes was contrary to Section 13-554 of the Administrative Code and Sections 443(a), 504 and 604 of the Retirement and Social Security Law.

As the Court of Appeals noted, a critical element in determining a retiree's retirement allowance is the computation of the individual's "final average salary" for the purposes of retirement.

Both a State Supreme Court judge and the Appellate Division agreed with Weingarten, ruling that the teachers were entitled to receive credit all per session compensation earned while NYCTRS members in determining their final average salary for retirement purposes since the inception of this 1998 law suit.

Rejecting NYCTRS's argument that its views were entitled to "great weight," the Court of Appeals said that it was simply being asked to resolve a question "of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent." Accordingly, it said it would consider the matter de novo.

The critical arguments presented by the parties respectively were as follows:

1. NYCTRS contended that per session compensation has been outside the scope of the definition of "annual salary" since the inception of teachers' retirement plans and that subsequent legislative modifications to the retirement system -- which have not specifically addressed per session compensation -- did not adjust benefits to include this type of income.

2. Weingarten argued that per session compensation is a form of regular compensation and therefore should be considered in determining a member’s retirement allowance, primarily because per session income is not covered by the exclusions from "annual salary" set forth in the applicable statutes.

The Court of Appeals said that for the purpose of evaluating whether per session compensation is pensionable, it was "guided by several considerations, including the use of the term ‘salary’ in the progression of NYCTRS statutes and regulations, the legislative intent evidenced in the modifications to the programs and the public policy that precludes artificial inflation of income before retirement."

Observing that the term "annual salary" predated the establishment of the NYCTRS as it was used in a predecessor statute that established the New York City Public School Teachers' Retirement Fund in 1917, the court commented that the 1917 Fund and the NYCTRS were designed to provide an income related to actual earnings during employment, "indicating that pensionable income was intended to include more than just anticipated base salary."

The Court of Appeals pointed out that in response to the former practice of including certain one-time or lump sum items of compensation, such as sick leave payments, over-time payments, termination pay and payments for unused vacation credit to enhance a member's final salary prior to his or her retirement, in 1971 the Legislature enacted Section 431 of the Retirement and Social Security Law [Chapter 503, Laws of 1971].

Section 431 explicitly barred a public retirement system of this State from considering the following in determining a member's final average salary:

1. Lump sum payments for deferred compensation, sick leave, accumulated vacation or other credits for time not worked;

2. Any form of termination pay;

3. Any additional compensation paid in anticipation of retirement; and

4. That portion of compensation earned during any twelve months included in such salary base period that exceeded the total compensation paid to the individual during the preceding twelve months by more than twenty per cent.

Although per session compensation was different from the exclusions listed in the first three categories barred by Section 431, the court said that "[c]ategory four would, however, limit pensionable compensation to the extent that the addition of per session income exceeds the statutory cap" and it was therefore necessary for it to consider this type of exclusion in a manner that "accord[s] respect to the[ir] interlocking and interrelated features."

The court's decision: Since the Legislature's exclusion of particular forms of compensation or payments from the calculation of the individual's final average salary "implicates a long-settled principle of statutory construction" -- where the Legislature lists exceptions in a statute, items not specifically referenced are deemed to have been intentionally excluded. Applying this canon of construction in these circumstances, the court said that by failing to exclude per session compensation when it enacted Section 431, "the Legislature evidenced an intent to allow per session compensation to be includable for pension purposes."

Pointing out that this view is consistent with the treatment of "per session" type payments by the New York State Teachers' Retirement System [TRS], which covers teachers in public schools outside of the City of New York, the decision notes that TRS "treats per session compensation as pensionable." The court said that there was "no reasonable basis justifying the disparate treatment of per session compensation by the NYCTRS and ... TRS."

The Court of Appeals also observed that "the highly regulated nature of per session activities prevents artificial manipulation of total compensation in the pre-retirement period" thereby avoiding the type of abuse that Section 431 seeks to bar.