US Supreme Court declines to review a 9th Circuit holding that the ADEA is the exclusive remedy available to individuals alleging unlawful age discrimination by a California governmental entity

US Supreme Court declines to review a 9th Circuit holding that the ADEA is the exclusive remedy available to individuals alleging unlawful age discrimination by a California governmental entity

Source: Meyers Nave PLC. Reproduced with permission. Copyright © 2013, Meyers Nave. All rights reserved.

Meyer Nave, a law firm, distributed an e-mail stating that there is “Good news for California public employers out of the U.S. Supreme Court today:[October 15, 2013] the high court officially kicked the age bias case of Madigan v. Levin* to the curb, dismissing the matter in a per curiam decision as improvidently granted."

The e-mail reports that “The bottom line for California public employers is that the rule in the U.S. Court of Appeals for the Ninth Circuit under Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1057 (9th Cir. 2009) remains in effect: the Age Discrimination in Employment Act (ADEA) is the exclusive remedy in federal courts for age discrimination claims against state and municipal employers, precluding equal protection claims under 42 U.S.C. §1983.”

Click here to Read the full article online

* Madigan v. Levin, No. 12-872

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Provisional employee terminated after failing two examinations for the position

Provisional employee terminated after failing two examinations for the position

Matter of the Steuben County Civil Service Commission, 113 Misc 2d 570

Subdivision 4 of §65 of the Civil Service Law provides as that "successive provisional appointments shall not be made to the same position after the expiration of the authorized period of the original provisional appointment to such position; provided, however, that where an examination for a position or group of positions fails to produce a list adequate to fill all positions then held on a provisional basis, or where such list is exhausted immediately following its establishment, a new provisional appointment may be made to any such position remaining unfilled by permanent appointment, and such new provisional appointment may, in the discretion of the appointing authority, be given to a current or former provisional appointee in such position".

When the employee failed two successive examinations for the position he held on a provisional basis, the Steuben County Civil Service Commission invoked its “Two Examination Failure” Rule and refused to approve the employee’s continuation in the position as a provisional provisional.

The Rule provided that no provisional employee who twice failed the test for the position would be given another provisional appointment unless the test failed to produce any qualified eligible or where the list was immediately exhausted. In this case the list consisted of four names, but one candidate refused appointment and a second withdrew his name from consideration.

The Commission successfully argued that further provisional appointment was not permitted because the examination did not fail to produce any qualified candidates and

the list was not exhausted.

Noting that a local commission has the discretion to adopt such a Rule, the Court suggested the employer, who “clearly was under no compulsion” to use the eligible list, would effect the purposes of the Constitution’s merit and fitness provision by appointing one of the two remaining eligibles on a provisional basis to the position.

Of course, the appointing authority could elect to make a permanent appointment from  “two-name list.”

However, if a person on eligible list is appointed to the vacancy provisionally, applying the decision in Roulett v Hempstead Civil Service Commission, 40 AD2d 611,the individual selected would automatically attain permanent status if continued in service beyond the maximum probationary period otherwise required for the position.

In Roulett the Appellate Division ruled that if a person on a nonmandatory eligible list is provisionally appointed to a vacant position, or is continued as a provisional employee after being certified for appointment from a nonmandatory list, he or she will be deemed to have been permanently appointed to the position if continued in service beyond the maximum period of probation

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An administrative hearing in §50.4 termination proceeding is not required

An administrative hearing in §50.4 termination proceeding is not required

55 NY2d 101

The Wayne County Civil Service Commission disqualified an employee and removed him from his position as police officer with the Village of Palmyra pursuant to §50.4 of the Civil Service Law. The Commission had determined that the police officer had “intentionally made false statements of material facts in his application or (had) attempted to practice (a) deception or fraud in his application”. The employee sued, claiming he could not be removed from the position without a hearing.

The Court of Appeals rejected the police officer’s argument, stating that §50.4 “requires no more than that the person be given a written statement of the reasons therefore and afforded an opportunity to make explanation and to submit facts in opposition to such disqualification”. No hearing is required.

The Commission had found that individual had falsified his application with respect to his experience as a police officer and concealed facts related to his separation from previous employment.
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Denial of access to teacher’s mailbox during "non-challenge period" lawful

Denial of access to teacher’s mailbox during "non-challenge period" lawful

89 AD2d 967, Appeal dismissed, 58 NY2d 823

An individual attempted to obtain access to teacher mailboxes in the face of the District’s policy of granting exclusive access to such mailboxes to the certified or recognized employee representative.

The Appellate Division rejected the individual’s denial of free speech argument on the basis that:

there were many alternatives means available to him to communicate with the teachers and

there was not denial of equal protection, as individual and the Middle Country Teachers Association were not similarly situated and therefore there was no differential treatment.

The Appellate Division also pointed out that the District’s policy was not in operation during the period when the certified or recognized union’s representation status could be challenged (See §208.2, Civil Service Law) and dismissed the appeal.

In many school districts the contract itself provides for “exclusive” rights of access to employees in the negotiating unit, except during the “challenge period”. 
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State legislature resists providing information requested by the Moreland Commission to the Commission

State legislature resists providing information requested by the Moreland Commission to the Commission

Source: Office of the Moreland Commission

Reacting to the Senate and the Assembly “refusal to cooperate” with the Commission in its efforts “to examine abuse of office by public officials and misconduct while in office,” the Commission issued the following statement:

STATEMENT FROM MORELAND COMMISSION CO-CHAIRS

"Pursuant to the Executive Order, the mandate of the Moreland Commission, among other things, is to examine abuse of office by public officials and misconduct while in office. Our investigation includes examining New York State legislators and their connections to outside business practices.

"On August 27, we requested information to be submitted by certain legislators. Leaders of the legislature for both the Assembly and Senate refused to cooperate.

"The Commission voted today [October 15, 2013] to aggressively move forward in compelling production of information into specific matters that the Commission is investigating.

"The Commission will continue its mandate of investigating corruption, issuing subpoenas, holding public hearings and will issue our first report on December 1."

Co-Chairs
Kathleen Rice
Milton Williams, Jr.
William Fitzpatrick

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