State's "sovereign immunity" defense waived when State moved lawsuit commenced in state court to a federal district court

State's "sovereign immunity" defense waived when State moved lawsuit commenced in state court to a federal district court

Estes v Wyoming Department of Transportation, 302 F3d 1200

Connie Estes, a driver's license examiner employed by the Wyoming Department of Transportation [WDOT], sued WDOT in Wyoming State Court. Estes alleged that WDOT violated Title I of the American with Disabilities Act [ADA] and Wyoming's workers' compensation law and, in addition, was in "breach of contract," when it dismissed her from her position.

WDOT deliberately moved Estes' lawsuit to federal court. In so doing, WDOT specifically stated that it was not waiving any of its rights to raise constitutional challenges to the district court's jurisdiction of it. In other words, WDOT attempted to move the case to federal district court while retaining it right to claim sovereign immunity under the Eleventh Amendment in that proceeding.

When WDOT later filed a motion for judgment, arguing the district court lacked jurisdiction because WDOT was entitled to sovereign immunity, it learned that its disclaimers in its earlier effort to "retain it sovereign immunity" notwithstanding its voluntarily moving the case to the federal court were ineffective.*

The Circuit Court, affirming the district court's decision, ruled that WDOT had waived its sovereign immunity with respect to Estes' ADA claim even if the only reason it removed the case to federal court was simply "to challenge the federal court's jurisdiction of the federal forum."

In contrast, the Circuit Court said that its holding with respect to WDOT in Estes' case does not affect the ability of a state to raise sovereign immunity when it is involuntarily brought into federal court and then raises an Eleventh Amendment defense. In the words of the Circuit Court:

It is only when a state removes a federal-law claim from state court to federal court that it "submits its rights for judicial determination" and unequivocally invokes the jurisdiction of the federal courts.

Accordingly, when WDOT removed the Estes case from state court to federal court, it "unambiguously invoked the jurisdiction of the federal court,” and thus waived any claim it might otherwise have to sovereign immunity under the Eleventh Amendment.

* WDOT also argued that Estes failed to exhaust state administrative remedies for her breach-of-contract claim.

Drafting disciplinary charges

Drafting disciplinary charges

Fella v County of Rockland, 297 AD2d 813

How important is it to draft disciplinary charges properly? According to the Appellate Division, even in situations where discipline may be warranted, the failure to word the charges and specifications properly may be fatal to the employer's attempt to discipline an employee.

Peter Fella, Rockland County's Commissioner of Hospitals, was suspended for 30 days without pay for allegedly violating the County's Equal Employment Opportunity Policy [EEOP].

According to the court's decision, following an investigation, the Rockland County Director of Employee Rights and Equity Compliance [Director] concluded that Fella had created a hostile work environment by promoting a person with whom he was then having a romantic relationship to a vacant assistant director of nursing position.

The Director held that the Commissioner's action violated the County's EEOP based on a finding that some employees said that they felt uncomfortable at work because Fella had this "romantic relationship" with a co-employee. This, according to the Director, created a hostile work environment and, as such, violated the EEOP. The County Executive adopted the Director's findings and suspended Fella for having created a hostile work environment in violation of the EEOP.

In its decision, the Appellate Division noted that the County's EEOP defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which `had the purpose or affect [sic] of unreasonably interfering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment.'" Citing DeCinto v Westchester County Medical Center, 807 F2d 304, the court explained that there is no sexual discrimination or harassment involved "where the conduct complained of by the employee involves an isolated act of preferential treatment of another employee due to a romantic, consensual relationship."

The Supreme Court judge commented that while Fella's decision to promote an individual with whom he was having a romantic relationship may constitute poor judgment, it did not constitute a violation of the County's EEOP - the alleged basis for bring the disciplinary action. As the County failed to establish any violation of its EEOP, the Supreme Court annulled the determination of the Rockland County Executive. The Appellate Division affirmed the ruling.

Of particular interest is the Supreme Court's noting that Fella's actions may have served as a basis for discipline, albeit based on other theories of alleged misconduct. While the Court concluded there was no violation of the EEOP and thus the County could not sustain the charges it filed against Fella, the decision suggests that Fella's behavior might constitute a legitimate basis for subjecting him to disciplinary action based on other specifications.

In other words, it is possible that had the County charged Fella with misconduct based on specifications other than violating the EEOP, the court might have allowed its disciplinary action against Fella to survive.

What might constitute such a charge and specification? Perhaps charging Fella with misconduct based on his alleged selection of a person for appointment to a position in the public service solely because of a personal relationship rather than making the selection on the basis of the Constitution's mandate that selection for appointment to the public service be based on "merit and fitness."

What lesson can be learned from Fella? While the charges and specifications filed against an employee should clearly apprise the individual the alleged "misconduct or incompetence" giving rise to the charge, the specifications should constitute acts or omissions that, if proven to have occurred, would support a finding that the employee was guilty of misconduct or incompetence. In any event, the employer should be certain that it is able to prove the allegations, whatever they may be, before initiating disciplinary action.

On the opposite end of the spectrum, where a disciplinary action has been "settled" and the penalty imposed includes placing the individual in "disciplinary probation status," the employer must make certain that in the event the employee is dismissed during this disciplinary probation period, the dismissal is based on the individual's failure to meet the specific requirements set out in the settlement agreement.

Perhaps the leading case illustrating this principle is Taylor v Cass, 505 NYS2d 929. Taylor, a Suffolk County employee won reinstatement with full back salary and benefits as a result of a court finding that he was improperly dismissed while serving his disciplinary probation.

It seems that under the terms and conditions of the six-month disciplinary probation period to which the parties had agreed, the County could terminate Taylor without any hearing if, in the opinion of his superior, Taylor's job performance was adversely affected by his being intoxicated while at work during his disciplinary probation period.

Taylor, while serving this probationary period, was terminated without a hearing for "failing to give a fair day's work" and "sleeping during scheduled working hours." The Appellate Division decided that Taylor's dismissal was improper because Taylor was not terminated for the sole reason specified in the disciplinary settlement: intoxication on the job.

Comptroller's audit focuses on school district's payroll and overtime practices

Comptroller's audit focuses on school district's payroll and overtime practices

Source: Office of the State Comptroller, Division of Local Government and School Accountability

The State Comptroller’s Division of Local Government and School Accountability audit report of the Webster Central School District explains that the thrust of its auditing of the District “… is to help school district officials manage their districts efficiently and effectively and, by so doing, provide accountability for tax dollars spent to support district operations.”

The focus of this audit was “to determine if District officials have established adequate controls over payroll and overtime pay to effectively protect District assets from loss or misuse for the period July 1, 2008 to November 16, 2010” and addressed the following related questions:

• Has the District established and implemented adequate internal controls to ensure that only appropriate and supported payroll payments are made?

• Has the District established and implemented adequate internal controls to effectively manage overtime, control costs and safeguard District assets?

Among the recommendations made:

1. The District should restructure its payroll process to avoid making any salary payments to employees in advance of services being rendered, in compliance with Education Law, State Education Department regulations and internal control best practices.

2. The District should ensure that it complies with all legal requirements when hiring retired public employees.

The Division’s report of its findings and recommendations are posted on the Internet at:

www.osc.state.ny.us/localgov/audits/schools/2011/webster.pdf

Administrative Law Judge recommends termination of employee found guilty of misconduct unrelated to official duties

Administrative Law Judge recommends termination of employee found guilty of misconduct unrelated to official duties

NYC Department of Sanitation v Ragone, OATH Index #1970/11

Pursuant to Mayoral Executive Order No. 16, the Department of Sanitation sought to terminate the employment of a worker who had been convicted of petit larceny.

The Order provides for the dismissal of any City employee convicted of a crime relating to their employment, which crime involves moral turpitude or bears upon their fitness to perform their duties.

OATH Administrative Law Judge Ingrid M. Addison found that Andrew Ragone had obtained a pension loan from the City. After cashing the check, he filed a sworn affidavit that he had not received it. NYCERS issued two supplemental checks, both of which Ragone cashed.

Judge Addison found that although the crime was not committed on Department property and did not concern Ragone’s work-related duties, the theft related to his status as a City worker because through that status, he obtained the loan and subsequent checks.

In the absence of compelling mitigating factors, Judge Addison recommended that Ragone be terminated.

Judge Addison’s decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1970.pdf

Employer liability for employee’s off-duty conduct

Employer liability for employee’s off-duty conduct

Donahue v Young, 298 AD2d 354

What liability does a municipality have when one of its firefighters assists in extinguishing fire - but not while on duty? According to the Donahue ruling, if the employee is not acting in the performance of his or her official duties, the employer does not have any liability for his or her action.

Ken Young, a New York City Firefighter, was off-duty, pursing personal business, when he spotted a car on fire while on the Van Wyck Expressway. Young stopped to assist. Apparently, as a result of Young's attempt to provide assistance, Walter Donahue sustained an injury and sued the City for damages.

The City argued that because Young was not on duty at the time, the City could not be held liable for the injury Donahue suffered. The Appellate Division agreed, stating that since Young acted voluntarily, "the doctrine of respondeat superior does not apply here." It ruled that the City could not be held vicariously liable for Young's actions.*

Although public employers may discipline an employee for off-duty conduct that negatively impacts upon the reputation or good name of the employer, it does not necessarily follow that an employer is responsible for its employees’ actions while they are off duty.

* The doctrine of “respondeat superior” expresses the concept that the employer is responsible for the actions of its employees in connection with their work