EEOC claims tempered by arbitration award

EEOC claims tempered by arbitration award

Collins v NYC Transit Authority, CA2, 305 F.3d 113

An employee is terminated from his or her position. The dismissal is sustained by an independent tribunal such as an arbitrator. The employee claims that he or she was really terminated by the employer in retaliation for his or her filing a compliant alleging that the employer violated his or her civil rights. Such an allegation, however, is difficult to prove if the employee's dismissal "for cause" has been upheld by an independent arbitrator. The facts and decision in Collins' case demonstrates this proposition.

New York City Transit Authority [NYCTA] Power Maintainer's Helper James Collins, an African American, was disciplined for insubordination after he refused to drive a truck he alleged had faulty brakes.

Collins subsequently filed a complaint with the New York State Division of Human Rights [SDHR] alleging that he was subjected to actions that he characterized as constituting unlawful discrimination such as his supervisor telling him that he could not attend a meeting of his work crew. After Collins filed this complaint with the Division, he contended that his supervisor accused him of using NYCTA equipment -- a vacuum cleaner -- for purposes unrelated to his work and that the supervisor used racial slurs against him when confronting him with this accusation.

In September of 1988, Collins was placed on an involuntary medical leave without pay as a result of his having "failed" a hearing test. Collins demanded, and was given, a retest of his hearing by a different physician. As a result of this second test, Collins was reinstated to his position. Claiming that he was placed on involuntarily leave because of his race, causing him to lose a significant amount of salary; Collins filed another discrimination claim with the SDHR/EEOC.

Collins' relationship with both his co-workers and his supervisors continued to deteriorate following his return from this leave. In the summer of 1990, Collins was disciplined following a dispute with a co-worker. In this instance, however, the arbitration board ruled there was not enough evidence to substantiate the claim and thus discipline was not warranted.

A new supervisor was assigned to Collins' unit. Collins' new supervisor reported three incidents of alleged misconduct and insubordination to the Superintendent of the Electrical Department. The supervisor also claimed that Collins had threatened him. The Superintendent, concluding that there was not sufficient evidence to support initiating disciplinary action against Collins, suggested that Collins be transferred to another unit. Collins said that he viewed this recommendation as retaliation.

In June of 1991, Collins was involved in another incident with his supervisor, which culminated with Collins allegedly punching the supervisor. As a result, NYCTA terminated Collins. Collins then filed a disciplinary grievance, which was ultimately considered by an arbitration panel in accordance with the terms set out in the Collective Bargaining Agreement. The arbitration panel sustained Collins' termination in a decision dated October 22, 1991.

After receiving a copy of the panel's decision, Collins filed yet another complaint with SDHR. SDHR transmitted the complaint to the Equal Employment Opportunity Commission [EEOC] for processing. After receiving a "right to sue" letter from EEOC in 1993, Collins sued NYCTA claiming that the Transit Authority, among other violations of law:

1. Discriminated and retaliated against him in violation of Title VII of the Civil Rights Act of 1964; and

2. Retaliated against him in violation of the 1st Amendment of the Constitution of the United States.

A federal district court judge granted the Authority's motion for summary judgment dismissing Collins' discrimination complaint and he appealed. The 2nd Circuit Court of Appeals sustained the lower court's ruling, observing that although a plaintiff's burden of demonstrating a prima facie case is minimal, Collins failed to satisfy even this minimal standard.*

The Second Circuit ruled that Collins failed to establish that his termination was a result of either retaliation or discrimination. Thus, said the court, he did not establish a prima facie case of unlawful discrimination.

In particular, the court found it significant that the final decision to terminate Collins was based on substantial evidence after a hearing before an independent board of arbitrators. The court noted that the arbitration panel conducted three days of hearings and issued a 14-page decision. The Circuit Court also noted that the board of arbitrators was a creature of a Collective Bargaining Agreement and was "undisputedly independent, neutral, and unbiased."

More often than not, the most difficult aspect of demonstrating a prima facie case is establishing the causal link between the protected activity and the adverse employment decision. In this case the Court apparently relied on the fact that Collins' dismissal was sustained after being considered by an independent arbitration panel after a hearing.

The Court noted that the fact that an arbitration panel finds an individual guilty of misconduct and sustains his or her termination does not in and of itself preclude the possibility of the individual proving a prima facie case. The fact that an independent body found "just cause" for dismissing the individual just makes the task more difficult.

In such a situation, said the court, the individual must present strong evidence to support his or her allegations of unlawful discrimination. Such strong evidence could include demonstrating that the arbitration process itself was somehow tainted. No such proof was presented by Collins.

This decision suggests that if an employee alleges he or she was terminated in violation of Title VII and the termination was sustained by an independent arbitrator, it may be advisable for the individual to first attempt to vacate the arbitrator's award before attempting to demonstrate a prima facie case of unlawful discrimination.

* To establish a prima facie case, the individual must show that (1) he or she was engaged in protected activity; (2) that the employer was aware of the activity; (3) that he or she suffered an adverse employment decision; and (4) that there was a causal link between the protected activity and the adverse employment decision.

Conflicting expert testimony

Conflicting expert testimony

Irish v McCall, 297 AD2d 895
Myers v McCall, 2 AD3d 1250, 1251 [2003], lv denied 2 NY3d 702 [2004]
Washington v McCall, 297 AD2d 901

If the decision maker credits the testimony of one expert over that of another in an administrative proceeding and the decision hinges on that expert's testimony, does the losing party have any recourse if it disagrees with the decision maker's determination regarding the credibility of the experts? In a word, YES! But the burden of proof to be satisfied by the party challenging the ruling is an extremely difficult one to meet.

For example, insofar as challenges to the Comptroller's reliance on the opinion of the New York State Employees' Retirement System's [ERS] medical expert is concerned, the Appellate Division had held that unless the "expert's opinion is so lacking in foundation or rationality as to preclude [the Comptroller] from exercising the authority to evaluate conflicting medical opinions," the court has no basis to disturb the Comptroller's decision. The court cited Harper v McCall, 277 AD2d 589, as its authority for this view.

The Comptroller's determination as to the creditability of the testimony of medical experts was the subject of three appeals recently considered by the Appellate Division, Third Department.

All three decisions challenged the Comptroller's sustaining rulings made by ERS based on the opinions of ERS's medical experts rather than the testimony of the medical experts produced by the applicants.

In each of the cases ERS had rejected applications for disability retirement benefits and the Comptroller had denied the applicants' appeals from those rulings.

In all three cases (Irish v McCall, Myers v McCall, and Washington v McCall), there was no factual dispute regarding the existence of injury; rather, the dispute in each case concerned whether or not the respective injuries sustained were so debilitating as to permanently disable the employee from performing his or her duties.

Each employee presented expert medical expert testimony by a physician at the administrative hearing in which, in all three cases, the medical expert concluded that the employee was permanently incapacitated from working. ERS, on the other hand, produced its own expert medical expert in each of the hearings. The thrust of the testimony of ERS's expert in each case was the employee-applicant was capable of performing the duties of the position.

While all three disability applicants argued there wasn't substantial evidence in the record to justify the rejection of their respective disability retirement applications, their underlying argument was that the Court should consider the testimony of their respective experts and weight it against the medical expert's testimony relied upon by the Comptroller.

The Court rejected this approach and stated that the relevant statute is very clear concerning determining the existence of a disability for the purposed of approving an application for a disability retirement allowance.

Citing Section 605(3c) of the Retirement and Social Security Law, the Appellate Division said that:

If the retirement system determines that the member is physically or mentally incapacitated for the performance of gainful employment, and that he was so incapacitated at the time he ceased his performance of duties and ought to be retired for disability, he shall be so retired.

Here ERS denied the applications submitted by the three workers based on the testimony of its medical expert. The hearing officer sustained ERS's determination and the Comptroller adopted the findings of the hearing officer.

Courts, said the Appellate Division, have consistently ruled that they will defer to a hearing officer's determination with respect to credibility issues. The Third Department said it was not persuaded as to the need to change that practice and upheld the Comptroller's denial of benefits in all three cases.

The test applied by the courts in such situations:

Where there is an articulated, rational and fact-based medical opinion offered, inconsistencies or other alleged deficiencies in the expert's testimony present questions of credibility for the administrative fact finder, rather than the courts, to resolve.

In all probability the same standard would be applied in cases challenging the appointing authority's reliance on the opinion of its medical expert in situations involving disability claims the involving Sections 71, 72 and 73 of the Civil Service Law or Sections 207-a and 207-c of the General Municipal Law.

Community of interest for the purposes of collective bargaining

Community of interest for the purposes of collective bargaining
Local 282 and Regional Transit Service, Inc., 35 PERB 3022

Individual, although paid at a supervisory pay level and substituted for the supervisor when the supervisor was absent, was determined to share a community of interest with unit employees and thus could not be excluded from the negotiating unit without evidence that the individual performed supervisory duties such as assigning work and overtime to employees, evaluating employees, approving leave requests, disciplining workers, or other supervisory duties. 

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law
Source: Justia October 14, 2011

Joseph, et al. v. Hyman, et al.

Court: U.S. 2nd Circuit Court of Appeals

Docket: 10-3943

October 12, 2011

Judge: Wesley

Areas of Law: Constitutional Law, Government & Administrative Law, Tax Law

Appellants sued New York City and the State, along with a number of city and state officials, challenging a tax scheme that exempted New York City residents from a tax levied on parking services rendered in Manhattan. Appellees subsequently filed a motion to dismiss, arguing, among other things, that comity barred the federal courts from hearing appellants' challenge to the state law. The district court granted the motion and the court affirmed, holding that because New York state courts have the ability to implement a remedy that the federal courts could not, Levin v. Commerce Energy, Inc. counseled in favor of dismissing the complaint pursuant to comity.

http://j.st/pQP

Greater Houston Small Taxicab v. City of Houston

Court: U.S. 5th Circuit Court of Appeals

Docket: 10-20381

October 10, 2011

Judge: Jones

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law

Plaintiff, a group representing taxicab companies that hold only one to three permits for cabs, asserted that the city's plan to distribute new taxicab permits violated the Equal Protection Clause of the Fourteenth Amendment. The district court granted summary judgment to the city and plaintiff appealed. The court held that plaintiff had not demonstrated that the ordinance violated the Equal Protection Clause by treating taxi companies differently based on size and therefore, the court affirmed the judgment of the district court.

http://j.st/pYz

Johnson v. Carroll, et al

Court: U.S. 8th Circuit Court of Appeals

Docket: 10-2889

October 7, 2011

Judge: Wollman

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Injury Law

Appellant filed suit against four Minneapolis police officers and the City of Minneapolis pursuant to 42 U.S.C. 1983, claiming that the officers used excessive, unreasonable force against her, in violation of the Fourth and Fourteenth Amendments. The court reversed the district court's grant of summary judgment on the excessive force claim and held that there were genuine issues of material fact regarding whether the officers used excessive force against appellant. The court affirmed the district court's dismissal of the section 1983 claims against Officer Carroll because appellant admitted that he did not use excessive force against her. The court agreed with the district court's conclusion that because appellant did not allege any damages, she failed to state a claim under the Minnesota Government Data Practices Act. Minn. Stat. 13.01, subdiv. 1. The court held, however, that the district court failed to consider whether appellant could recover her costs and disbursements in her December 19, 2008 action to compel compliance under Minn. Stat. 13.01, subdiv. 4. Therefore, the court remanded for a ruling on whether appellant was entitled to costs or disbursements under that section of the statute. The court finally held that the district court properly dismissed appellant's common law battery claims against officers as untimely because the two-year statute of limitations period had expired. The court held, however, that appellant presented sufficient evidence to preclude summary judgment on the basis of official immunity on the alleged state tort claims.

http://j.st/ppN

Riley v. Sun Life and Health Ins., et al.

Court: U.S. 8th Circuit Court of Appeals

Docket: 10-2850

October 7, 2011

Judge: Beam

Areas of Law: ERISA, Government & Administrative Law, Insurance Law

Appellant appealed the district court's grant of summary judgment in favor of Sun Life in an Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1001 et seq., benefits case. At issue was whether Sun Life was entitled to offset from appellant's employer-provided long-term disability benefits the amount that appellant received in Department of Veterans Affairs (VA) benefits each month. The court held that VA benefits, for a wartime service-related disability, as a matter of statutory construction, did not derive from an act that was "similar to" the SSA or RRA, which were both federal insurance programs based upon employment and the amount of an award under their terms depended upon how much had been paid in. Accordingly, the court reversed and remanded to the district court with directions to enter judgment in favor of appellant.

http://j.st/ppi

Montana Consumer Counsel v. FERC; Upper Peninsula Power Co., et al. v. FERC; Public Citizen, Inc., et al. v. FERC

Court: U.S. 9th Circuit Court of Appeals

Docket: 08-71827, 08-74439, 08-74443

October 13, 2011

Judge: Gould

Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law, Utilities Law

This case stemmed from FERC's statutory mandate set out in the Federal Power Act (FPA), 16 U.S.C. 824-824w, to ensure that all rates and charges made, demanded, or received by power wholesalers were just and reasonable. Petitioners subsequently sought review of FERC's final order (Order 697), contending that the order violated FERC's governing statutes. In Order 697, FERC codified the existing limited market-based policy, along with multiple enhancements, in a final rule. At issue was whether the market-based regulatory policy established by FERC's order was permissible under the law. Taking into account Chevron deference, the law of the circuit, other relevant precedent, and the direction of the Supreme Court as to how the court should approach such administrative law issues concerning federal agencies, the court concluded that Order 697 did not per se violate the FPA.

http://j.st/pmT

Russell Country Sportsmen, et al. v. U.S. Forestry Service, et al.; Great Falls Snowmobile Club, et al. v. U.S. Forestry Services, et al.

Court: U.S. 9th Circuit Court of Appeals

Docket: 10-35623, 10-35784

October 12, 2011

Judge: Fisher

Areas of Law: Environmental Law, Government & Administrative Law

This case stemmed from the USFS's issuance of a revised Travel Management Plan governing recreational motorized and nonmotorized use on 1.1 million acres of the Lewis and Clark National Forest, including the Middle Fork Judith Wilderness Study area. At issue was whether the Travel Management Plan violated the Montana Wilderness Study Act of 1977 (Study Act), Pub. L. No. 95-150, section 3(a), 91 Stat 1243, and the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. The court held that nothing in the Study Act, which required the USFS to manage a wilderness study area so as to "maintain" its wilderness character as it existed in 1977, prohibited the USFS from exercising its discretion to enhance the wilderness character of a study area. The court also held that NEPA did not require the USFS to prepare a supplemental draft environmental impact statement (EIS) where, as here, the final decision made only minor changes and was qualitatively within the spectrum of the alternatives discussed in the draft EIS. Accordingly, the court reversed the judgment of the district court.

http://j.st/pQV

United States v. Tukes

Court: U.S. 10th Circuit Court of Appeals

Docket: 11-2019

October 6, 2011

Judge: Gorsuch

Areas of Law: Banking, Constitutional Law, Criminal Law, Government & Administrative Law, Insurance Law

Defendant-Appellant Alan Tukes appealed his federal conviction for bank robbery, arguing that the government’s evidence was insufficient to prove that the bank was insured by the Federal Deposit Insurance Corporation (“FDIC”) at the time of the crime. At trial, a prosecutor asked the bank’s branch manager: “Now, the Compass Bank, is that a bank that is federally insured by the [FDIC]?” She responded: “Yes, it is.” When asked whether the bank “has” any documentation proving its insured status, she replied: “Yes. We have a certificate.” When asked whether the certificate “hangs” in the branch, the manager replied in the affirmative. The district court admitted the certificate, dated November 8, 1993, into evidence. The government offered no additional evidence of the bank’s insured status. At summation, Defendant argued that the government had not proven that the bank was FDIC insured at the time of the robbery. The jury returned a guilty verdict. Viewing the evidence in the light most favorable to the government, the Tenth Circuit concluded "it is clear that a rational juror could have concluded beyond a reasonable doubt that the bank was insured at the time of the robbery." The Court affirmed Defendant's conviction.

http://j.st/pGW

Bond v. Shinseki

Court: U.S. Federal Circuit Court of Appeals

Docket: 10-7096

October 7, 2011

Judge: O'Malley

Areas of Law: Government & Administrative Law, Military Law, Public Benefits

In 1996 petitioner, who had served in the Marine Corps from 1965 to 1968, filed a claim for compensation for post-traumatic stress disorder. The VA Regional Office granted the claim and assigned a disability rating of 30%, effective October 1996. Petitioner requested an increase in the percentage and made multiple submissions before 2000, when the Office increased the rating to 70%, effective July 1999. The Veterans Court affirmed as to the rating, but remanded with instructions for assigning an effective date. On remand, the Board found that a February 1998 submission met the requirements for an informal claim for TDIU and assigned an effective date of February 11, 1998 that was affirmed by the Veterans Court. The Federal Circuit vacated. To comply with the directive of 38 C.F.R. 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, the VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim; the VA failed to make such a determination.

http://j.st/ppQ

Tarvin v. Dishman

Court: Alabama Supreme Court

Docket: 1101315

October 7, 2011

Judge: Stuart

Areas of Law: Education Law, Government & Administrative Law, Injury Law, Labor & Employment Law

The Boaz City Board of Education ("the Board") and its members Alan Perry, Fran Milwee, Roger Adams, Alan Davis, and Tony G. King (collectively "the Board members") petitioned the Supreme Court for a writ of mandamus to direct the circuit court to vacate its order that denied their motion to dismiss claims filed against them by Lisa and Donnie Tarvin and to enter an order dismissing the claims with prejudice. According to the complaint, Leland Dishman, the superintendent for the Board, struck kindergarden teacher Lisa Tarvin with a paddle. Dishman read a statement at a press conference, denying that the incident occurred. The Tarvins sued the Board, the Board members in their official capacities, and Dishman in his individual capacity, alleging claims of assault and/or battery, defamation, libel, and slander and sought monetary damages. The Board and the Board members moved to dismiss the claims against them, arguing that they were immune from suit under the State immunity doctrine. Upon review, the Supreme Court found that the Board and its members demonstrated that under the Alabama Constitution, they had immunity from the claims asserted against them, and "a clear legal right to have the claims… dismissed with prejudice." The Court granted the petition and issued the writ.

http://j.st/pG8

Alaska Exchange Carriers Assn., Inc. v. Regulatory Comm'n of Alaska

Court: Alaska Supreme Court

Docket: S-13528

October 7, 2011

Judge: Christen

Areas of Law: Communications Law, Constitutional Law, Government & Administrative Law

Six weeks after the Regulatory Commission of Alaska approved the 2007 Access Charge Rates long distance telephone companies pay to local telephone companies, an association of local telephone companies realized that five of the rates the Regulatory Commission approved were based upon an erroneous spreadsheet the association included in its rate filings. The association requested that the Regulatory Commission correct the rates. The Regulatory Commission corrected the rates prospectively, but concluded retrospective application was barred by the Supreme Court's case law on retroactive ratemaking. The superior court agreed that retrospective application of the adjusted rates was impermissible, and the association appealed. Upon review, the Supreme Court reaffirmed its decision in "Matanuska Electric Association, Inc. v. Chugach Electric Association, Inc." (prohibiting retroactive ratemaking in "second look" cases), but held that the Regulatory Commission has the authority to implement corrections of some procedural mistakes starting when notice of a mistake is given. The Court remanded to the Regulatory Commission to determine the type of error that occurred in this case and whether the error should be corrected retrospectively.

http://j.st/pGB

Alaska Crude Corp. v. Alaska Dept. of Natural Resources

Court: Alaska Supreme Court

Docket: S-13708

October 7, 2011

Judge: Fabe

Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law

Appellant Alaskan Crude Corporation operates an oil and gas unit known as the "Arctic Fortitude Unit." Alaskan Crude’s unit agreement with the Department of Natural Resources set work obligation deadlines that Alaskan Crude was required to meet to continue operating the Unit. In July 2008 the Commissioner found that Alaskan Crude had failed to meet its work obligations, gave notice that Alaskan Crude was in default under its unit agreement, and specified that the Unit would be terminated if Alaskan Crude did not cure the default by a new set of deadlines. Alaskan Crude appealed the Commissioner’s decision to the superior court, arguing that a pending judicial decision in a separate appeal qualified as a force majeure under the unit agreement, preventing Alaskan Crude from meeting its work obligations. It also argued that the Commissioner’s proposed default cure was an improper unilateral amendment of Alaskan Crude’s unit agreement. The superior court affirmed the Commissioner’s findings and decision and Alaskan Crude appealed. Upon review, the Supreme Court concluded that: (1) the pending judicial decision in Alaskan Crude’s separate appeal did not trigger the force majeure clause of the unit agreement; and (2) the Commissioner’s proposed default cure was not a unilateral amendment of Alaskan Crude’s unit agreement. Thus the Court affirmed the decision of the superior court upholding the decision of the Commissioner.

http://j.st/pG6

Lot 04B & Block 83 Townsite v. Fairbanks North Star Borough

Court: Alaska Supreme Court

Docket: S-13654

October 7, 2011

Judge: Winfree

Areas of Law: Government & Administrative Law, Real Estate & Property Law

A property owner appealed a judgment that allowed foreclosure on a borough property tax lien, arguing that the borough’s foreclosure was legally flawed and that the borough’s attorney should have been sanctioned for maintaining the foreclosure against his property. Because the superior court did not err in concluding there were no legal flaws in the foreclosure, and because therefore there was no basis to sanction the borough’s attorney, the Supreme Court affirmed the judgment in all respects.

http://j.st/pGL

Comcast of Little Rock, Inc. v. Bradshaw

Court: Arkansas Supreme Court

Docket: 11-277

October 13, 2011

Judge: Danielson

Areas of Law: Government & Administrative Law, Tax Law

Comcast of Little Rock filed three petitions for review with the Arkansas Public Service Commission, asserting that Comcast's ad valorem tax assessment for the years 2006-08 erroneously included the value of its intangible personal property. The Commission's ALJ dismissed Comcast's petitions. Comcast subsequently filed a complaint for refund of taxes in the county court, asserting that it was entitled to a refund of taxes erroneously assessed against it and arguing that the Commission's tax division improperly included the value of Comcast's intangible personal property when calculating its assessments. The county court concluded that it lacked jurisdiction in the matter and dismissed the claims. The circuit court also dismissed Comcasts's claims. The Supreme Court affirmed, holding (1) the circuit court did not err in concluding that it lacked subject-matter jurisdiction to hear Comcast's challenge to its assessment; and (2) because Comcasts's claim did not challenge the validity of the underlying tax, but rather alleged that the assessment was carried out in an illegal fashion, the suit did not come within Arkasnas's illegal-exaction provision, and therefore, Comcast's avenue of relief for its assessment grievance lay with the Commission.

http://j.st/pmv

Ahn v. Liberty Mut. Fire Ins. Co.

Court: Hawaii Supreme Court

Docket: SCWC-28315, SCWC-28314

October 4, 2011

Judge: McKenna

Areas of Law: Government & Administrative Law, Injury Law, Insurance Law

In two consolidated cases, Liberty Mutual Fire Insurance Company denied personal injury protection (PIP) benefits to Chung Ahn and Kee Kim (collectively, Insureds) for treatments after motor vehicle accidents. Insureds each sought administrative reviews with the Insurance Division of the Department of Commerce and Consumer Affairs (DCCA). The DCCA granted summary judgment to Liberty Mutual based on the holding in Wilson v. AIG Hawaii Insurance Company, which stated that unless an insurer's non-payment of PIP benefits jeopardizes an insured's ability to reach the minimum amount of medical expenses required to file a tort lawsuit, insureds are not real parties in interest allowed to pursue lawsuits seeking payment of PIP benefits to providers. The circuit court reversed, concluding that Act 198 of 2006 had legislatively overruled Wilson. The intermediate court of appeals (ICA) upheld the circuit court. On appeal, the Supreme Court (1) overruled Wilson, holding that insureds are real parties in interest in actions against insurers regarding PIP benefits; and (2) vacated the ICA and circuit court judgments because at the time of judgment, Act 198 of 2006 was not retrospective, and the real party in interest holding of Wilson was still in effect. Remanded.

http://j.st/pgn

Mississippi v. Gunn

Court: Mississippi Supreme Court

Docket: 2010-CA-00719-SCT

October 13, 2011

Judge: Randolph

Areas of Law: Government & Administrative Law, Real Estate & Property Law

The Secretary of State of Mississippi (State) and the City of Ocean Springs (Ocean Springs) appealed a chancery court's decision that enjoined the construction of a sidewalk. The sidewalk would have run along a beach adjacent to the seawall on property claimed by Respondents Clyde Gunn, III and Neil Harris in Ocean Springs. The issue before the Supreme Court was whether the chancellor erred in granting the permanent injunction. The State and Ocean Springs asserted that the chancellor erred in issuing the permanent injunction because: her finding of irreparable injury was not supported by substantial evidence; an adequate remedy at law was available; and she failed to rule on the merits of the underlying dispute regarding ownership of the land where the proposed sidewalk was to be located. Upon review, the Supreme Court found no error in the chancellor’s earlier determination that irreparable injury would result if she did not grant an injunction and that no adequate remedy at law was available. The Court concluded that the chancellor’s order and opinion was in fact a preliminary injunction, incorrectly styled as a permanent injunction: "[i[t is clear from its language that the chancellor sought to protect the interests of all parties until ownership of the property could be determined. We therefore remand this case to the Hinds County Chancery Court, vacate the permanent injunction, and leave the earlier-issued preliminary injunction in place."

http://j.st/psF

Brandt Development Company of New Hampshire, LLC v. City of Somersworth

Court: New Hampshire Supreme Court

Docket: 2010-641

October 12, 2011

Judge: Lynn

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

Petitioner Brandt Development Company of New Hampshire, LLC (Brandt) appealed a Superior Court order that upheld a decision of Respondent City of Somersworth’s (City) zoning board of adjustment (ZBA). The ZBA denied its application for a variance. Brandt owned a house and attached barn in the residential multi-family district of the City. In November 1994, Brandt applied for a variance from size and frontage requirements to convert the property, then being used as a duplex, into four dwelling units. The ZBA denied the application after finding that the property failed to satisfy the five criteria for a variance. From 1995 to 1997, Brandt added four bedrooms to the upstairs unit after receiving permits to do so. In December 2009, Brandt again sought to convert the property into a four-unit dwelling, and again applied to the ZBA for a variance from the City’s area, frontage, and setback requirements. The ZBA declined to consider the merits of the variance application on the basis that “circumstances not changed sufficiently to warrant acceptance of the application.” The superior court affirmed the ZBA’s decision in August 2010. Upon review, the Supreme Court found that the legal criteria the ZBA used in making its determination were not "discreet and unrelated criteria, but interrelated concepts that aim to ensure a proper balance between the legitimate aims of municipal planning and the hardship that may sometimes result from a literal enforcement of zoning ordinances." As such, the Court found that the ZBA's denial of Brandt's variance application was not reasonable in light of state law, and it reversed the ZBA's and Superior Court's decisions, and remanded the case for further proceedings.

http://j.st/pdt

Conner v. N.C. Council of State

Court: North Carolina Supreme Court

Docket: 213PA10

October 7, 2011

Judge: Jackson

Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law

Petitioners in this action were inmates who had been sentenced to death by lethal injection. Respondent, North Carolina Council of State, approved the lethal injection protocol after it was submitted to the Council by the Department of Corrections (DOC), an administrative agency. Although Petitioners challenged the constitutionality of the state's method of execution, at issue on appeal was whether the Council's statutorily-mandated approval of the DOC's action was subject to the requirements of the North Carolina APA when the DOC's action was exempt from the APA. The Office of Administrative Hearings (OAH) ALJ recommended that the Council reconsider its approval of the execution protocol. The Council declined to reconsider its approval based upon its conclusion that the OAH did not have jurisdiction to review the issue. The superior court dismissed Petitioners' petition for judicial review. The Supreme Court (1) affirmed the superior court's ruling that the APA does not apply to the Council's approval of the execution protocol, and (2) affirmed the court's ruling, as modified, that Petitioners' rights do not include the right to present evidence to the Council and that the Council's obligations do not include a substantive review of the protocol before it is approved.

http://j.st/pxa

City of Tulsa v. Bank of Oklahoma, N.A.

Court: Oklahoma Supreme Court

Docket: 109449

October 11, 2011

Judge: Combs

Areas of Law: Aviation, Contracts, Government & Administrative Law, Injury Law

The City Council of Tulsa decided to encourage the initiation of new direct nonstop airline service to business centers on the East and West coasts, and voted to approve a Memorandum between the Tulsa Industrial Authority (TIA) and the City which would convey certain real property (Property) for that purpose. The transfer would allow TIA to mortgage the Property to the Bank of Oklahoma (BOK) in support of a non-recourse loan so that TIA could, in turn, make an aggregate loan (Great Plains Loan) to Great Plains Airlines, Inc. (Great Plains). This transfer would allow the Tulsa Airports Improvement Trust (TAIT) to enter into a Support Agreement, pursuant to which TIA, in the event of a default would have the option of selling the Property to TAIT under the direction of the BOK. Upon exercise of such option, the TIA would sell, transfer and convey the property to TAIT to satisfy the outstanding loan balance. Great Plains subsequently defaulted under the terms of the Great Plains Loan, and left a balance owed to the Bank. Ultimately TAIT did not purchase the Property. TIA and the Bank sued TAIT. TAIT alleged the Support Agreement was unlawful and an unenforceable contract because TAIT could not purchase the Great Plains Loan and Property by reason that all of TAIT's funds were airport revenues and such purchases would violate the FAA Revenue Use Policy. To resolve the matter, the parties executed a Settlement Agreement which provided the City would pay BOK. The City and its Mayor asked the trial court to determine that the settlement agreement was a lawful contract executed by the City, and the settlement payment made pursuant to the settlement agreement was a lawful expenditure of public funds. Taxpayers intervened, and asked the trial court to determine that the payment of money to the Bank of Oklahoma pursuant to the settlement agreement was an illegal transfer of public funds made pursuant to an unlawful settlement agreement. In granting the City's motion for summary judgment, the trial court found the settlement agreement was a lawful and the settlement payment was a lawful expenditure of funds. Upon its review, the Supreme Court concluded the settlement was not based on a contract, but rather under the equitable theory of unjust enrichment to the City of Tulsa, and as such, the City had authority to enter into the Settlement Agreement. However, the Court found that the unjust enrichment claim was unviable and the Statute of Limitations would have barred the unjust enrichment claim against the City. The Court remanded the matter back to the District Court to direct the repayment of the settlement funds from BOK back to the City of Tulsa.

http://j.st/pgj

Rich v. Tenn. Bd. of Med. Exam'rs

Court: Tennessee Supreme Court

Docket: M2009-00813-SC-R11-CD

October 10, 2011

Judge: Lee

Areas of Law: Government & Administrative Law, Health Law, Professional Malpractice & Ethics

The Tennessee Board of Medical Examiners suspended Dr. Joseph Rich's medical license for one year and imposed other conditions after finding that, among other things, the physician had violated Tenn. Code Ann. 63-6-214(b)(1)(4) and (12). The chancery court affirmed the Board's judgment. The court of appeals reversed because the Board failed to articulate the applicable standard of care in its deliberations. The Supreme Court (1) held that the Board was required by Tenn. Code Ann. 63-6-214(g) to articulate the applicable standard of care in its deliberations; (2) vacated the ruling of the trial court to the extent that it affirmed the Board's decision that Rich had violated sections 63-6-214(b)(1)(4) and (12); (3) vacated the judgment of the court of appeals to the extent it reversed the Board's findings that Rich violated sections 63-6-214(b)(1)(4) and (12); and (4) rather than reversing the Board's findings of violations, remanded the matter to the Board with instructions to conduct deliberations based on the existing record and articulate the applicable standard of care as required by the statute. 

http://j.st/pg2

Neither GML §207-c nor a statutory equivalents distinguishes between categories of mental illness or disability for the purposes of eligibility for benefits

Neither GML §207-c nor a statutory equivalents distinguishes between categories of mental illness or disability for the purposes of eligibility for benefits

Matter of Wydra v City of Rochester, 2011 NY Slip Op 06780, Appellate Division, Fourth Department

In this action the Appellate Division held that standards applicable in determining an individual’s eligibility for §207-c benefits were equally applicable in a local law, rule or regulation providing similar benefits.

§8-A-6 of the City of Rochester’s Charter set out a “the local equivalent of General Municipal Law § 207-c.” When Petra Wydra, a City of Rochester police officer, challenged the City’s discontinuing its payment to her pursuant §8A-6 of the Charter terminating her employment as a police officer the Appellate Division concluded that Wydra’s petition should be granted.

The court said that §8A-6 of the Charter “provides in relevant part that the Chief of Police, on behalf of the City, shall compensate any member of the Police Department ‘who is injured in the performance of his or her duties or who is taken sick as a result of the performance of his or her duties . . . .’ [and] The parties agree that the section of the Charter in question is the local equivalent of General Municipal Law § 207-c.”

Although an arbitrator found that Wydra's disability is unrelated to her job duties and that she therefore is not entitled to benefits, the Appellate Division disagreed, finding that the arbitrator’s ruling was not supported by substantial evidence in the record.

Essentially the arbitrator found that Wydra suffered from depression and anxiety, and that she was unable to work as a result of those conditions. Thus, said the Appellate Division, the dispositive issue is whether there is a "direct causal relationship between [Wydra's] job duties and the resulting illness or injury."

The decision notes the following guidelines to used in determining if there is, in fact, a “direct causal relationship:”

Neither §207-c nor the City’s Charter section, “require that [employees] additionally demonstrate that their disability is related in a substantial degree to their job duties."

§207-c, and be inference, the City’s Charter, merely requires "a qualified petitioner . . . [to] prove a direct causal relationship between job duties and the resulting illness or injury.” Further, a preexisting non-work-related conditions does not bar recovery under §207-c where the individual demonstrates that the job duties were a direct cause of his or her disability.

The court noted that “even the City's expert witness, who evaluated [Wydra] several times, agreed that she suffered from depression and anxiety and that her condition "is certainly related to the job." Significantly, the Appellate Division said that “[t]he fact that the City's expert testified that Wydra had not suffered from posttraumatic stress disorder (PTSD) is of no moment, inasmuch as General Municipal Law §207-c does not distinguish between categories of mental illness or disability.”

The Appellate Division also annulled the arbitrator's determination that Rochester could lawfully terminated Wydra’s employment as the sole basis for the termination, as stated in a letter to Wydra from Rochester’s Chief of Police, was that she was "continuously absent for more than one (1) year due to a non-work related disability."

The court explained that “[i]nasmuch as we have concluded above that [Wydra] is entitled to benefits under the Charter because her disability is work-related, it necessarily follows that the termination was improper.

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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