An appointing authority must comply with the procedures set out in Civil Service Law §72

An appointing authority must comply with the procedures set out in Civil Service Law §72

2014 NY Slip Op 24005, Supreme Court, New York County, Judge Michael D. Stallman

In this “combined Article 78 and Article 75 proceeding,” State Supreme Court Judge Michael D. Stallman considered two issues: [1] action taken under Civil Service Law §72.5 for placement of tenured civil service worker, Employee, on involuntary leave for medical disability and [2] a parallel grievance procedure under a collective bargaining agreement (CBA) between the State of New York and the Public Employees Federation, Employee's union, challenging efforts to terminate Employee from his position.

Employee was placed on involuntary leave with pay under color of Civil Service Law §72.5 by his employer [Agency] and while on such leave, was served with disciplinary charges in accordance with the disciplinary procedure set out in the CBA seeking Employee’s dismissal. Employee placed on leave without pay in connection with the disciplinary action.

Addressing the disciplinary charges served on Employee, Judge Stallman said that the matter was submitted to arbitration in accordance with the CBA’s disciplinary grievance procedure. The arbitrator sustained Employee's grievance in part and directed that he be reinstated to his position. After receiving the arbitration award Employee was notified that “he was still on leave pursuant to Civil Service Law §72.5 and that he would not be reinstated until he did certain things.”

Employee than petitioned the court to [1] confirm the arbitration award, the Article 75 proceeding; and [2] annul the determination placing him on involuntary leave pursuant to CSL §72.5, the Article 78 proceeding. As his remedy, Employee asked the court to”

(1)   Direct his reinstatement to his former position and pay him back pay and benefits; and

(2)   Declare that his continuation of leave is arbitrary and capricious and in violation of Civil Service Law §72.

Addressing the disciplinary action taken against Employee, Judge Stallman said that the Arbitrator, Gayle A. Gavin, issued her Opinion and Award, stating, "[t]he grievant is denied in part and sustained in part. The charges are proved. The penalty is modified to a time-served suspension,” and directed that Agency reinstate Employee to his position “forthwith."

Rejecting Agency’s arguments that the award should be vacated because the arbitrator's determination was irrational since the arbitrator found that all four charges had been proven, “two of which also purportedly constituted crimes under state law," and because of Employee's prior disciplinary history, “the only rational penalty is petitioner's dismissal.”

The court confirmed the arbitrator’s award* noting that the arbitrator's determination to reduce Employee's penalty to a time-served suspension “was not totally irrational,” explaining that the arbitrator analyzed and evaluated all of the relevant evidence. In setting the penalty to be imposed, the arbitrator considered the fact that in his 24 years of service Employee had received only two written counseling memoranda prior to the filing of the disciplinary charges underlying this appeal, concluding that terminating Employee's would be an excessive penalty given a "good disciplinary record for a long-term employee." However, said Judge Stallman, the arbitrator also noted that, "while dismissal in this instance is viewed as excessive, any future similar misconduct will not be treated as leniently."

Turning to Employee’s §72 appeal, the court said that Agency sent Employee a letter with the heading "Section 72 Employee Notification" notifying him, among other things, that he was to be examined by two health professionals. The letter stated, in part, that "This letter is to advise you that [Agency] has requested that you be examined by Employee Health Services to determine your fitness to perform the full duties of your position ….”

The New York State Employee Health Services subsequently advised Agency that that a physician and a psychologist had examined Employee and that based on those evaluations, [Employee] "is fit to perform the essential duties of [of his position]..However, at this time, [the psychologist] is unable to make a determination whether [Employee] represents a danger in the work place as he was evasive during psychological testing and as there was insufficient data regarding the intent of his extensive use of the internet while at work."

Agency then wrote to Employee stating that it had received Arbitrator Gavin's decision indicating that a modified penalty of a time-served suspension and reinstatement to the workplace as a result of disciplinary charges and that “this letter is to advise you that you are still on leave in accordance with Civil Service Law, Section 72.5 as a result of medical documentation provided by Employee Health Services (EHS) on … which indicated an inability to determine whether you present a danger to the workplace."

This letter also stated that “You will remain on such leave until you request a re-evaluation by EHS and [are] subsequently deemed competent to perform your duties in a manner that is safe for yourself, co-workers and the public.”

Judge Stallman Civil Service Law noted that §72(1) sets forth the mandatory procedure. The sequence of steps for proceeding under Civil Service Law § 72 (1), relevant to this case, are:

1. The employer must provide written notice of the facts providing the basis for the proposed leave and judgment that the employee is not fit to perform the duties of his position, the date on which the leave is to commence, and the employee's rights under the procedure served by first class, registered, or certified mail return receipt requested, upon the employee;

2. A medical examination conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction to determine whether employee is fit to perform the duties of his position;

3. The employee has ten working days from the service of the notice to object to the imposition of the proposed leave of absence and request a hearing filed by the employee personally or by first class or registered mail, return receipt requested; and

4. The employee shall be entitled to draw all accumulated, unused sick leave, vacation, over time and other time allowances standing to his credit while on leave.

Noting that "Because of the significant due process implications of [§72], strict compliance with its procedures is required" Judge Stallman said Agency did not comply with the statutory scheme of §72 but rather “placed [Employee] on an involuntary leave of absence with pay instead of a leave of absence without pay, as required under Civil Service Law §72(5)."**

The following omission or errors were noted by Judge Stallman:

1. Agency’s notice that placed Employee on leave does not state the reasons why he was being placed on involuntary leave nor cites Civil Service Law §72(5) as its statutory authority for so doing;

2. The notice fails state "the facts providing the basis for placing Employee on §72(5) leave,” i.e., it neither recites its basis for itse judgment that Employee "is not fit to perform the duties of his position" nor does it contains any reference to Employee’s "dangerousness" or "fitness to perform duties;" and

3. The Agency’s communication did not provide proper notice as required by statute as the letter neither state any reasons nor refer to any determination that Employer's presence on the job would either represent a potential danger to persons or property, or would severely interfere with Agency operations. The court said that “Even if providing a copy of the statute may have satisfied [Agency’s] obligation to inform [Employer] of his statutory rights, Agency still failed to meet the other statutory requirements” and simply providing a copy of the statute did not satisfy the notice requirements of the statute.

Holding that "Due to [Agency’s] failure to comply with the notice requirements of the statute, [Employee's] purported placement on a leave of absence is a nullity." The fact that Agency may have had a rational basis in fact for taking the acts it took is not a defense to the issue of whether or not Agency followed the procedures provided by Civil Service Law §72.

Finding that Employee’s the current leave without pay violative of lawful procedure, Judge Stallman annulled the Agency’s actions and remanded the matter to it “for appropriate action pursuant to Civil Service Law §72.” ***

Judge Stallman then opined that “[Agency] has shown a rational basis for its belief that the [Employee] may be a danger in the work place. Thus, [Agency] need not permit [Employee] to return to the workplace, and Agency is free immediately to begin the Civil Service §72 process anew.”

Judge Stallman also observed  “It may seem anomalous that someone in [Employee’s] position, who has not fully cooperated with the psychological evaluation, can be restored to the payroll even though he is not performing his job duties. The anomaly results from [Agency’s] choice — permitted by [CBA] and statute — to have brought the arbitration in parallel with the purported section 72 involuntary leave proceeding. Each is governed by a different legal framework; each has different standards and procedures. Nevertheless, [Agency has its] remedy: [it] can follow the mandated statutory procedures required by Civil Service Law §72.

* Judge Stallman said "Because of the great degree of deference afforded to arbitration awards, the available grounds for vacating them are extremely limited. Mere errors of law or fact reflected in an arbitration award are insufficient for a court to overturn it, since the courts should not assume the role of overseers to mold the award to conform to their sense of justice.' A court may only disturb the award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power.'"

** The court said “Whether the leave with pay was a mistake or an exercise of compassion or both, need not be determined here.”

*** Employee is entitled to back pay to the extent that he was not paid during any period of absence allegedly pursuant to §72.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_24005.htm
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Governor Cuomo announces administration appointments

Governor Cuomo announces administration appointments

Source: Office of the Governor

Governor Andrew M. Cuomo announced the following nomination and new appointments within his administration on January 14, 2014..

Corinda Crossdale

Governor Cuomo will nominate Ms. Crossdale to be Director of the State Office for the Aging (“NYSOFA”). Pending her confirmation by the New York State Senate, Ms. Crossdale will serve as Acting Director, where she will lead NYSOFA’s efforts to improve access to cost-effective non-medical support services for older individuals to maximize their ability to age in their community and avoid higher levels of publicly-financed care. Ms. Crossdale served as Assistant Secretary for Health since February 2013. Ms. Crossdale previously served as Executive Deputy Director of NYSOFA and as Director of the Office for the Aging in Monroe County. Ms. Crossdale earned a Master’s Degree in Social Work from Syracuse University and a B.S. from SUNY Brockport.


Rose Duhan

Ms. Duhan will serve as Assistant Secretary for Health. Ms. Duhan previously served as Director of Government Programs at the New York Health Plan Association. She also served as a Senior Budget Analyst for Albany County. Ms. Duhan earned a Master’s Degree in Public Health Policy and Administration from the University of Michigan and a B.A. from Wesleyan University.


Eric Madoff

Mr. Madoff will serve as Executive Director of the State Insurance Fund. Mr. Madoff previously served as Chief of Staff at the NYS Department of Financial Services, where he was responsible for the operation of the agency and its 1,400 employees. During his distinguished career, Mr. Madoff served as Chief Investment and Strategy Officer for the New York Liquidation Bureau, a Vice President at Goldman Sachs, and a Captain in the U.S. Army, stationed in Greece and Hawaii. Mr. Madoff earned an M.B.A. from Harvard and a B.S. from the United States Military Academy.
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Oral assurance of reemployment given to an educator found sufficient to defeat her claim for Unemployment Insurance benefits

Oral assurance of reemployment given to an educator found sufficient to defeat her claim for Unemployment Insurance benefits

2013 NY Slip Op 07241, Appellate Division, Third Department

A full-time special education teacher [Teacher] was laid off from her position as a full-time special education teacher by her employer during the 2009-2010 academic year. She, however, remained on the employer's payroll at a reduced salary for the following academic year as a coach and per diem substitute teacher.

In June, prior to the end of the academic year, Teacher received a telephone call from the employer offering her a full-time position as a special education teacher for the new academic year at a salary 5% higher than her former full-time employment.

Although Teacher orally accepted the position, she nevertheless filed a claim for unemployment insurance benefits effective July 11. In August Teacher received a memorandum confirming her employment. Ultimately, the Unemployment Insurance Appeal Board ruled that Teacher was ineligible to receive benefits because she had received a reasonable assurance of continued employment pursuant to Labor Law §590(10).*

In addition, the Board said that Teacher was subject to a recoverable overpayment with respect to the unemployment benefits that had been paid to her.

Teacher appealed the Board’s determination.

The Appellate Division affirm the Board’s ruling, explaining "A professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment."

The question of whether a teacher received a reasonable assurance of reemployment for the following academic year is a question of fact and, if the Board's findings that the teacher had, in fact, received such an assurance that is supported by substantial evidence, they will not be disturbed.

Here, said the court, the Board specifically credited teacher's testimony that she was informed prior to the end of the academic year that a position was available at the beginning of the upcoming semester. Although Teacher did not receive formal notice in writing until August, the Appellate Division said that it found no basis to conclude that the oral assurance that teacher received in June was not sufficient and reliable within the meaning of Labor Law §590[10].

* Labor Law §590(10) addresses the terms and conditions of eligibility for unemployment insurance benefits available to professional employee with educational institutions, including the State University of New York, the City University of New York and public community colleges.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07241.htm
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Penalty imposed for absence from work after employee told “she could not take those days off” - termination from employment

Penalty imposed for absence from work after employee told “she could not take those days off”  - termination from employment

2013 NY Slip Op 07912, Appellate Division, Third Department

The school district was closed from April 11 to 15, 2011 for spring recess. Employee, a special education aide, was approved to be absent on April 19 and 20, 2011 for religious observances. In addition, Employee asked for approval from her principal to April 18 and 21, 2011. By taking time off on April 18 and 21, 2011, Castle would effectively be absent from the classroom for two weeks.

As this absence would involve an extension of an existing school holiday, Employee was told that her request required the approval of the District Superintendent. Ultimately Employee request to absent herself on April 18 and 21 was denied and she was notified "that she could not take those days [off] under any circumstances" and she was specifically told  "[D]on't take sick time…”

 Employee went to the Dominican Republic on April 10 through April 22, 2011. While there, Employee notified the school via email that she was taking April 18 and 21, 2011 off as "family sick" days.

The school district subsequently filed Civil Service Law §75 disciplinary charges against Employee alleging misconduct, insubordination and being absent without permission [AWOL]. The hearing officer found Employee guilty of all of the charges filed against her and recommended that she be terminated from her employment with the school district.

The Board of Education adopted the findings and recommendations of the hearing officer and Employee filed an Article 78 petition challenged the decision to dismiss her from her position.

The Appellate Division said that as Employee’s “primary challenge on review is directed to the propriety of the penalty imposed,” its is to determine "whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness" i.e., the “Pell standard.”* Further, said the court, “it is not the role of this Court to either "second-guess the administrative agency or substitute its own judgment for the action taken" even if "a lesser penalty may have been more appropriate."

Addressing Employee’s claim that neither the Hearing Officer nor the Board gave due consideration to the mitigating factors present here — namely, hers consistently positive performance evaluations, her lack of a prior disciplinary record, her family's dependence upon her employment as a source of income/health insurance and the fact that she made arrangements for a substitute to cover her classes on the days she elected to be absent, the court said the record reflects that both the hearing officer and the Board considered these factors.

However, said the Appellate Division, "even a long and previously unblemished record does not foreclose dismissal from being considered as an appropriate sanction" for demonstrated misconduct,” citing Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823, “particularly where, as here, an employee openly defies an employer's express directive”

Finding that there was ample evidence to support the finding that Employee’s absence "was a well-planned event taken in direct contravention of a direct order," the court sustained the Board’s imposing the penalty of termination. **

* Pell v Board of Education, 34 NY2d 222

** See, also, Decisions of the Commissioner of Education, Decision 14,280, in which the Commissioner considered disciplinary action taken against and educator alleged to have abused the school district’s leave provisions, posted at: http://www.counsel.nysed.gov/Decisions/volume39/d14280.htm

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The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07912.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

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Employee’s failure to “opt-out” after reading an e-mail and webpage resulted in an arbitration agreement

Employee’s failure to “opt-out” after reading an e-mail and webpage resulted in an arbitration agreement

Source: Employment News from WKL&B WorkDay

The employer had implemented an arbitration program to resolve disputes between it and its employees.. Its notice to employees included the statement : “If you do not opt out by the deadline, you are agreeing to the arbitration process set forth in the Agreement.”

An employee who received a notice of the arbitration agreement and accessed the relevant “webpage” failed to “opt-out” by not declining to use the arbitration process by the deadline indicated on the web site. The court granted the employer’s motion to compel arbitration of the employee’s discrimination claims, holding that the employee, by failing to opt-out in a timely manner, had agreed to submit the matter to arbitration.

The text of the article by Lorene D. Park, J.D, writing for Wolters Kluwer, is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/email-and-webpage-suffice-as-arbitration-agreement-employee-agreed-by-not-opting-out/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WKL%26B+WorkDay%29

The text of the federal district court’s decision is posted on the Internet at:

http://hr.cch.com/ELD/KarzonAT&T.pdf

NYPPL Comment: As the employee had alleged that that employer had subjected him to a hostile work environment and unequal discipline, and unlawfully terminated his employment based on his national origin, it could be argued that the employee had a vested statutory right to litigate his complaint[s] that could only be obviated if he affirmatively elected submit the matter to arbitration.  

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