Failure to perform found to result from incompetence rather than misconduct

Failure to perform found to result from incompetence rather than misconduct
Transit Auth. v. Wong, OATH Index No. 1866/08

In a disciplinary proceeding, a computer specialist was charged with both incompetence and misconduct. ALJ Kara Miller sustained the incompetence charge, finding that the respondent had overstated his qualifications and experience on his resume and lacked the requisite skill set to perform his job functions.

The ALJ, however, dismissed the three misconduct charges, finding that as to the first, the respondent was not given a clear and unambiguous order that he violated; as to the second, the Department relied on hearsay that was so attenuated as to have no value at all in order to establish the charge; and as to the third, the respondent's failure to perform an assignment was a reflection of his incompetence rather than misconduct.

ALJ Miller recommended demotion.

Jurisdictional classification, position classification and determining the compensation to be paid individuals in the State’s “civil service”

Jurisdictional classification, position classification and determining the compensation to be paid individuals in the State’s “civil service”

DeMartino v City of New York, 2012 NY Slip Op 22178, Supreme Court, New York County

The City of New York promulgated Personnel Orders No. 2012/1 and 2012/2 that approve and resulted in an amendment to Rule X of the Personnel Rules and Regulations of the City of New York.

The amendments to Rule X, reclassified 106 heretofore ungraded [presumably NS or “non-statutory” positions] that were so-called “prevailing rate titles” into 14 new occupational titles, “with four grade levels within each service classification affecting salaries and benefits.”

DeMartino filed an Article 78 petition seeking a court order annulling Personnel Orders No. 2012/1 and 2012/2, contending that the determinations were unilateral, arbitrary and capricious, in violation of Labor Law §220, and the reclassification provisions of Civil Service Law §20.*

The City opposed the petition claiming that it had “complied with Civil Service Law §20 [1] when it allocated titles within a salary grade construct because it did not change a jurisdictional classification.” The City also contended that Civil Service Law §20 only applies when a title is changed from competitive to [the] noncompetitive or [the] exempt class [or the labor class].

Supreme Court disagreed with the City’s position, holding that the legislative intent of Labor Law §220 is to impose upon the state and municipal corporations the same obligations of paying the prevailing rate of wages to laborers, workmen and mechanics employed in public works, in ungraded or noncompetitive employment** as private employers.

Supreme Court then granted DeMartino’s petition and annulled the two challenged Personnel Orders  .

* NYPER comments: §20 of the Civil Service Law addresses the jurisdictional classification and jurisdictional re-classification of positions by a civil service department or personnel officer, which determination is subject to the approval of the State Civil Service Commission. 


Civil Service Law §2.10 defines the term "jurisdictional classification" as the assignment of positions in the classified service to the competitive, non-competitive, exempt or labor classes while §2.11 defines the term "position classification" as a grouping together, under common and descriptive titles, of positions that are substantially similar in the essential character and scope of their duties and responsibilities and in the qualification requirements therefor. 


Positions in the classified service are typically allocated to a salary grade. See, for example, §130.1.a(1) of the Civil Service Law with respect to certain positions in the service of the State as the employer. 


Those positions that are not allocated to a salary grade are referred to as “Other Statutory” [O.S.] where the compensation to be paid to the incumbent is set by law or “Non-statutory” [NS] where the salary is typically determined by the entity’s budget as “not to exceed” a designated amount. An example of an “O.S.” position: §40.1 of the Executive Law sets the annual salary of the State Comptroller..

** NYPER comments: As noted above, a position in the classified service that is “Ungraded” is typically referred to as an “N.S.” or “O.S.” position. Being “Ungraded” does not in itself determine the jurisdictional classification of the position. All positions in the classified service are automatically in the competitive class unless the position has been classified or reclassified to a different jurisdictional class as provided by law or has been otherwise so designated by statute.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22178.htm

In an appeal to the Commissioner of Education the aggrieved party has the burden of demonstrating a clear legal right to the relief he or she is seeking

In an appeal to the Commissioner of Education the aggrieved party has the burden of demonstrating a clear legal right to the relief he or she is seeking

Nicholas Washburn v Ellenville Central School District, Decisions of the Commissioner of Education, Decision #16,368

Nicholas Washburn challenged the termination of his probationary appointment and his denial of tenure by the Ellenville Central School District Board of Education at the end of the third year of his probationary appointment as a physical education teacher.

In response to the superintendent writing to Washburn informing him that she would recommend termination of his services as a probationary teacher effective July 22, 201 at a board to be held on June 22, 2010, Washburn requested “a written statement of the reasons for the superintendent’s negative recommendation.”

The superintendent replied to Washburn indicating that her recommendation was based on his failure to follow certain directives and practices and set forth a number of examples of such omissions.

When the Board terminated Washburn’s probationary appointment effective July 22, 2010, he appealed the Board's decision to the Commissioner of Education.

In his appeal Washburn contended that the reasons for his termination and denial of tenure were “false and pretextual” and asked the Commissioner to annul the Board’s action and to grant him tenure retroactive to June 22, 2010.

The Board, in rebuttal, argued that [1] Washburn failed to state any procedural violation of Education Law §3031 with respect its terminating his probationary appointment and [2] that he did not established any basis for granting him tenure retroactively. The Board also claimed that Washburn had failed to exhaust his administrative remedies under the relevant collective bargaining agreement.

As to the Board’s “affirmative defense” that Washburn failed to exhaust his administrative remedy under the collective bargaining agreement, the Commissioner said that “other than this conclusory allegation,” the Board neither supplied any facts nor made any reference to any “applicable provisions of the agreement.”  Accordingly, the Commissioner ruled that the Board had not established this defense. 

Turning to the merits of Washburn’s appeal, the Commissioner observed that “generally, a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law.” Further, said the Commissioner, the aggrieved party “has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which [he or she] seeks relief.”

Although Washburn alleged that the Board’s decision to terminate his probationary employment and deny him tenure violated his right to due process, the Commissioner said that he failed to allege any procedural violation of Education Law §3031 or any other applicable statute.  Further, said the Commissioner, the record indicated that the Board complied "in all respects with the statutory procedural requirements for terminating a probationary employee and denying a probationer tenure."  

Nor, said the Commissioner, did Washburn establish that he was terminated for a constitutionally impermissible reason or in violation of statute.

Having failed to articulate a clear legal right to the relief requested, the Commissioner ruled that Washburn failed to meet his burden and dismissed his appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16368.html

An employer may, but is not required to, create a new job or create a light-duty version of the disabled employee’s current job in order to provide a reasonable accommodation

An employer may, but is not required to, create a new job or create a light-duty version of the disabled employee’s current job in order to provide a reasonable accommodation
Jacobsen v New York City Health & Hosps. Corp., 2012 NY Slip Op 05478, Appellate Division, First Department

William Jacobsen alleged that he was wrongfully terminated from his position because of a disability in violation of the New York State Human Rights Law (Executive Law §296[1][a]) and the New York City Human Rights Law (Administrative Code of City of NY §8-107[1][a]).

Diagnosed with pneumoconiosis, an occupational lung disease, Jacobsen requested, and was granted, a medical leave of absence. Subsequently Jacobsen’s physician cleared to return to work on January 3, 2006, but directed that he not be present at any construction site. HHC sent a letter to Jacobsen’s physician setting out his duties and explaining that he is required to spend approximately 75% of his time in the field monitoring construction sites. Jacobsen’s union representative then asked HHC to let him return to work with an accommodation of being assigned work "that he is capable of doing in the office." In addition, Jacobsen provided another letter from his physician stating that he was medically cleared to work in the field.

Ultimately HHC told Jacobsen that he would be placed on unpaid medical leave for six months and his job would be left open in the event that his condition improved, indicating that his union’s proposed accommodation, relocation to the central office, was not feasible because the duties of his position required that he visit facilities that have ongoing construction. Jacobsen’s physician then advised HHC that Jacobsen “could never be medically cleared to perform the essential functions of his current duties because he should not be further exposed to any type of environmental dust.”

HHC terminated Jacobsen at the end of his six-month leave of absence, whereupon he commenced an action for wrongful termination because of a disability.

To state a prima facie case of employment discrimination due to a disability, a plaintiff must demonstrate that he or she suffered from a disability and that the disability caused the behavior for which he or she was terminated (Matter of McEniry v Landi, 84 NY2d 554). Once a plaintiff establishes a prima facie case, the burden shifts to the employer, here HHC, to show that the disability prevented Jacobsen "from performing the duties of the job in a reasonable manner or that the employee's termination was motivated by a legitimate nondiscriminatory reason".

The Appellate Division concluded that HHC met its burden by establishing that at the time of termination, Jacobsen was unable to perform the duties of his job because of his lung condition and that no reasonable accommodation was available.

Under the Executive Law §292 [21-e], a "reasonable accommodation" is defined as "actions taken by [an] employer which permit an employee . . . with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held . . . provided, however, that such actions do not impose an undue hardship on the business." Similarly, the City's Human Rights Law provides that an employer "shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job" (Administrative Code §8-107 [15][a]).

However, said the court, "an employer is not required to find another job for the employee, create a new job, or create a light-duty version of the current job."

Under both New York's Executive Law and the City's Administrative Code, an employer is required to perform an individual assessment of an employee prior to terminating him or her. In this instance it was only after Jacobsen's doctor and Jacobsen himself confirmed that he could no longer work at construction sites that HHC terminated him from his position.

Accordingly, the Appellate Division affirmed Supreme Court’s order granting HHC’s motion for summary judgment dismissing the complaint.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05478.htm

Terminated employee’s actions that did not constitute misconduct but was an error of judgment does not disqualify the individual for unemployment insurance benefits

Terminated employee’s actions that did not constitute misconduct but was an error of judgment does not disqualify the individual for unemployment insurance benefits

Jackson (County of Nassau Civ. Serv. Commn.--Commissioner of Labor), 2012 NY Slip Op 05372, Appellate Division, Third Department

A correction officer at the Nassau County Correctional Facility began a “personal relationship with a man who was later incarcerated at that facility.” She continued to have a personal relationship with this individual following his incarceration and communicated with him on her cell phone in contravention of the facility’s policy prohibiting corrections personnel from fraternizing with inmates.

Ultimately the correction officer was terminated from her position and she was later disqualified from receiving unemployment insurance benefits on the ground that her employment was terminated due to misconduct.

The Unemployment Insurance Appeal Board, however, reversed this decision and ruled that correction officer was entitled to receive benefits because her activities did not constitute misconduct, but rather an error of judgment.

The Appellate Division sustained the Board’s ruling.

Rejecting the facility’s appeal, the court explained that the question of whether an applicant for unemployment insurance benefits had engaged in disqualifying misconduct is a factual issue for the Board to resolve and “its determination will not be disturbed if supported by substantial evidence.”

Notably, said the court, "not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct." Although the correction officer’s making the phone calls violated the employer's policy prohibiting corrections personnel from having personal conversations with inmates, she had testified that she was unaware of this policy.

The court, “based upon the limited record” before it, concluded that substantial evidence supported the Board's finding that correction officer's actions, “albeit inappropriate, did not rise to the level of misconduct disqualifying her from receiving unemployment insurance benefits.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/slipidx/aidxtable_3.shtml