Arbitrator’s imposing a penalty of suspension without pay rather than termination did not violate public policy

Arbitrator’s imposing a penalty of suspension without pay rather than termination did not violate public policy

Roberts v City of New York, 2014 NY Slip Op 04706, Appellate Division, First Department

A twenty-two year employee was involved in a traffic accident while driving a Department vehicle under the influence of alcohol. After a hearing at which both sides presented testimony and documentary evidence, an arbitrator rejected the Department’s preferred penalty of termination, ruling instead that the unpaid suspension, which had lasted nearly two years, imposed on the employee immediately after the accident was a sufficient penalty for an employee who had an otherwise unblemished employment history and who had admitted his addiction to alcohol and had taken full responsibility for his misconduct.

The arbitrator, considering the employee's remorse and completion of his rehabilitation programs, ordered him reinstated as a Department employee to “a position commensurate with his experience,” but ruled that the Department did not have to restore him to a position requiring that he drive department vehicles until it was confident that he had been rehabilitated.

The Department then filed a petition pursuant to Article 75 of the CPLR seeking to vacate the arbitration award, contending that that termination was the only appropriate penalty under the circumstances. Supreme Court dismissed the Department’s petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division, considering the record and the findings made by the arbitrator, ruled that the Department had not established that the arbitration award should be vacated, explaining that the arbitrator’s award did not violate public policy and the Department failed to cite to any well-defined constitutional, statutory or common law principle that the award violated.

In the words of the Appellate Division, “as the arbitrator grounded his reasoning in the evidence, including an assessment of the employee as frank and apologetic,” the Department’s contention that termination is the only appropriate penalty “is without merit,” citing United Federation of Teachers, Local 2 v Board of Education, 1 NY3d 72.

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Determining the existence of an employer-employee relationship for the purposes of eligibility of Unemployment Insurance benefits and the payment of required employer contributions

Determining the existence of an employer-employee relationship for the purposes of eligibility of Unemployment Insurance benefits and the payment of required employer contributions

2014 NY Slip Op 04544, Appellate Division, Third Department

The school district [District] challenged two decisions issued by the Unemployment Insurance Appeals Board holding that::

1. The District was the employer of a claimant for Unemployment Insurance benefits; and

2. The District was required to pay additional unemployment insurance contributions based on remuneration paid to the claimant and other individuals similarly situated.

The Appellate Division affirmed the Board’s determination, explaining that “Whether there exists an employee-employer relationship is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record.”

The court pointed out that the Board’s determination regarding an employer-employee relationship “rests not on one single factor, but consideration is given to whether control was exercised over the results or the means used to achieve those results, with the latter factor deemed more important.”

In this instance the claimant testified that, among other things, she was provided with a school district computer for use in coordinating the District's program, maintained a file cabinet and mailbox at the school, was given use of the photocopier and postage machine, and had access to school district transportation. Claimant also testified that she performed most of her work at the school, including some tasks that were required to be performed there.

Claimant further testified the District’s Superintendent had disapproved classes, directed claimant to hire a specific teacher against her wishes, had final approval over her canceling classes; and that claimant was required to seek approval before assigning herself to teach a class and that request had been denied.

In addition, both the claimant and the Superintendent testified that, in addition to claimant’s duties supervising the school district’s adult education program, she also provided office help and performed general records management duties for the school district.

The Appellate Division ruled that that notwithstanding evidence that might support a different conclusion, it found that substantial evidence supported the Board's decision. Accordingly the Board’s rulings were affirmed, requiring the school district to make the appropriate additional Unemployment Insurance contributions based on remuneration paid to the claimant and the remuneration it had paid to others similarly situated and, in addition, sustained the Board’s order requiring payments of Unemployment Insurance benefits to the claimant.

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Special duty must be demonstrated in order to recover for an alleged negligent performance of a governmental function

Special duty must be demonstrated in order to recover for an alleged negligent performance of a governmental function

2014 NY Slip Op 04464, Appellate Division, Second Department

While employed by the New York City Department of Education (Department) as a school social worker [Worker] allegedly was injured when two kindergarten students collided with her in a school hallway. Worker commenced an action against the Department and the City of New York, alleging negligent supervision.

The Supreme Court granted Department's motion for summary judgment dismissing the complaint. The Appellate Division sustained the lower court’s ruling. The court explained that a school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge, “at least in the absence of a special duty to the person injured.” Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a "special duty" to the students themselves in contrast to owing a special duty to teachers, administrators, and other adults on or off of school premises. Thus a school district may be held liable to a student when it breaches that duty, so long as all other necessary elements of a negligence cause of action are established.

In contrast, this special duty owed to the students themselves does not, as a general matter, carry over to teachers, administrators, and other adults on or off of school premises.

Here, said the Appellate Division, the Department established  prima facie, that it did not owe the Worker a special duty and Worker did not raise a triable issue of fact.

Under the circumstances, it appears that Worker would be able to claim Workers’ Compensation benefits if otherwise applicable with respect to her alleged injury but has no cause of action for any alleged negligent supervision of the students on the part of the Department.
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Unblemished work record not sufficient to mitigate imposing termination as the disciplinary penalty for the employee’s misconduct under the circumstances

Unblemished work record not sufficient to mitigate imposing termination as the disciplinary penalty for the employee’s misconduct under the circumstances

2014 NY Slip Op 04252, Appellate Division, First Department

The Appellate Division, finding that the disciplinary determinations were supported by substantial evidence and the penalty imposed by the appointing authority, termination of employment, did not shock its sense of fairness, dismissed the appeal of the petitioner.

The court said that the record demonstrated that in addition to the petitioner's misconduct in purchasing cocaine while on duty, he had, on two separate occasions, carried out his job responsibilities in a manner that involved health and safety risks, and that, in fact, resulted in actual physical injury to others.

Although the petitioner “had an otherwise unblemished work history” the Appellate Division indicated that this did not constitute “mitigation” sufficient to warrant a different determination.

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Employer provided retirees with the health benefits to which they were entitled upon retirement under the collective bargaining agreement

Employer provided retirees with the health benefits to which they were entitled upon retirement under the collective bargaining agreement

Non-instruction Adm'rs & Supervisors Retirees Assn. v School Dist. of City of Niagara Falls, 2014 NY Slip Op 04299, Appellate Division, Fourth Department

18 retired employees of School District of City of Niagara Falls (District), and their retirees association commenced a breach of contract/declaratory judgment action seeking a declaration that the individual retirees are entitled to the health insurance benefits provided in the collective bargaining agreement (CBA) in effect at the time each individual retired.

Supreme Court granted the District's motion to dismiss the complaint and the retirees appealed. The Appellate Division modified the Supreme Court’s ruling in part, declaring that the individual retirees are not entitled to the health insurance coverage provided in the CBA in effect at the time each individual retired.

The Appellate Division agreed with the District that the language in the CBAs at issue is clear and unambiguous and thus that extrinsic evidence may not be considered.

The contract provision at issue stated: The District "shall assume the full cost of health insurance coverage and major medical . . . for each employee in the negotiating unit covered by this Agreement lawfully retiring in the future." The CBAs further state that "[t]he coverage so provided shall be the same type that the employee would have had if he/she had continued employment.When the retiree reaches his/her sixty-fifth (65th) birthday and qualifies for Medicare . . . , the type of health insurance and major medical coverage shall be changed to cover his/her new circumstances" (emphasis by the court).

The retirees contended that this provision provided that retirees are "entitled to the benefits they received at the time they each retired" (emphasis added by the court). Such an interpretation, said the court, “contravenes the plain meaning of the contractual language.”

The Appellate Division concluded that the plain meaning of the language set out in the collective bargaining agreement is that, upon retirement, a retiree will receive health insurance coverage of the same type received by active employees at that point in time. Thus, if health insurance for active employees changes over the years based on rising health care costs and successive collective bargaining agreements, the health insurance provided to retirees also will change because the health insurance of the retirees would be subject to the same changes if they had continued employment.

The Appellate Division explained that “Rather than fixing retiree coverage as of the date of retirement, the use of the word "would," a conditional verb indicating the consequence of an imagined or theoretical event or situation, expressly contemplates that the coverage provided to retirees will mirror the coverage provided to active employees.”

A retiree of the District is therefore entitled to the type of health insurance that he or she would have had if the retiree had never left the District's employ, i.e., the health insurance coverage negotiated by the active employees and the District at any given point in time 

As the retirees conceded that the individual retirees receive the same health insurance coverage as active employee, the Appellate Division concluded that they were receiving the health care benefits to which they were contractually entitled.
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