Termination during a disciplinary probation period

Termination during a disciplinary probation period

2014 NY Slip Op 05347, Appellate Division, Second Department

An employee [Petitioner] filed an Article 78 petition challenging the appointing authority's summarily terminating him from his position.

Earlier Petitioner, a Safety and Security Officer, was served with a notice of discipline alleging that he was guilty of misconduct when, among other things, he failed to properly activate the emergency medical system. Petitioner and the appointing authority then entered into a disciplinary settlement agreement that provided Petitioner would serve a one-year disciplinary evaluation period during which time the appointing authority could terminate his employment should he commit any act that was the same as, or similar to, the acts underlying the charges cited in the notice of discipline.

During the “disciplinary evaluation period” Petitioner was sent a letter of termination in which the appointing authority stated that “Petitioner failed to respond appropriately to an emergency situation.”

The Appellate Division, noting that “The disciplinary settlement agreement entered into by the parties constituted a valid, binding contract,” dismissed Petitioner’s action.

The court explained that under the terms of this agreement, the Petitioner would be permitted to continue his employment notwithstanding the prior notice of discipline and he, in turn, agreed to the termination of his employment during the disciplinary evaluation period for any act that was deemed to be the same as or similar to the acts underlying the charges cited in the notice of discipline.

Petitioner, in agreeing to the terms set out in the disciplinary settlement agreement, absent bad faith on the part of the appointing authority, waived any right he may have had under the operative collective bargaining agreement to a review of the appointing authority’s decision to terminate his employment “for acts the same as or similar to his prior alleged misconduct.”

Finding that the appointing authority’s decision to terminate his employment was rationally based and thus was not arbitrary and capricious, in the absence of Petitioner demonstrating that his termination was carried out in bad faith or illegally accomplished, the Appellate Division sustained Petitioner's being summarily removal from his position

Further, said the court, Petitioner failed to raise an issue of fact sufficient to warrant a hearing as otherwise provided pursuant to §7804(h) of the Civil Practice Law and Rules [CPLR].

In contrast, in Taylor v Cass, 122 A.D.2d 885, a County employee won reinstatement with full retroactive salary and contract benefits because the court determined that he was improperly dismissed while serving a disciplinary probation period. The terms of Taylor’s probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” at any time during his disciplinary probationary period. Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division ruled that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement agreement: intoxication on the job.

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Failure to fulfill the requirements for an extension of a leave of absence

Failure to fulfill the requirements for an extension of a leave of absence

OATH Index No. 749/14

New York City Office of Administrative Trials and Hearings Administrative Law Judge John B. Spooner recommended the termination of employment of a service aide for excessive absence and absence without leave.

The ALJ rejected the aide’s claim that he was unable to work due to disability and that his employer improperly denied his leave request.

Judge Spooner noted that the employee had been granted a two-month medical leave and was told that if he needed to extend the leave he must request the extension with documentation of his “diagnosis, prognosis, and dates unable to work” prior to the expiration of the leave. 

ALJ Spooner found respondent failed to fulfill the requirements for an extension. His formal extension request was filed months late and the medical notes he submitted gave no information as to treatment and were vague as to prognosis.

The decision is posted on the Internet at http://archive.citylaw.org/oath/14_Cases/14-749.pdf
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A court’s review of an administrative decision supported by substantial evidence is limited to determining if it was arbitrary, capricious or affected by error of law

A court’s review of an administrative decision supported by substantial evidence is limited to determining if it was arbitrary, capricious or affected by error of law

2014 NY Slip Op 04637, Appellate Division, Fourth Department

Petitioner [Plaintiff] commenced this proceeding pursuant to CPLR Article 78 challenging an administrative determination terminating his General Municipal Law §207-c benefits on the ground that his current disability was not related to an injury suffered on-the-job.

Supreme Court refused to transfer the proceeding to the Appellate Division pursuant to CPLR §7804(g), holding that Plaintiff’s petition did not raise an issue involving whether the administrative decision was supported by substantial evidence.

The Appellate Division affirmed the Supreme Court’s decision explaining that "Where, as here, a petition does not raise a substantial evidence issue, a court's inquiry is limited to whether [the administrative determination] was arbitrary, capricious or affected by error of law."

In this instance, said the Appellate Division, the record supports the Supreme Court’s conclusion that the administrative decision terminating Plaintiff’s General Municipal Law §207-c benefits “was neither arbitrary and capricious, i.e., without sound basis in reason and . . . without regard to the facts … nor affected by an error of law.”

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An educator is eligible for unemployment insurance benefits during the summer recess unless given a reasonable assurance of continued employment in the next semester

An educator is eligible for unemployment insurance benefits during the summer recess unless given a reasonable assurance of continued employment in the next semester
Matter of Erie Community Coll. [Commissioner of Labor], 2014 NY Slip Op 04995, Appellate Division, Third Department

An adjunct professor [Professor] employed by Erie County Community College taught two courses during the Spring semester. In April Professor received an offer to teach two courses in the following Fall semester at the same rate of pay. Professor accepted the offer and then applied for unemployment insurance benefits for the summer recess period.

Notwithstanding §590.10 of the Labor Law, which, in pertinent part, provides that a professional employed by an educational institution is ineligible for unemployment insurance benefits for any period between two successive academic years when he or she has received a reasonable assurance of continued employment, the Unemployment Insurance Appeal Board determined that Professor was eligible to receive unemployment insurance benefits during the recess period.*

The Board explained that it a reasonable assurance of continued employment by the College was lacking as the College’s offer of employment for the fall semester given to Professor indicated a current full-time professors could, at any time up to the first day of classes, displace Professor and teach the courses assigned to him themselves.

The Appellate Division sustained the Board’s determination, explaining that the question of whether a claimant received a reasonable assurance of reemployment for the following academic year is a question of fact and, if the Board's findings in that regard are supported by substantial evidence, it will not be disturbed.

The Appellate Division concluded that the Board's decision was supported by substantial evidence and declined to disturb it.

*§590.11 of the Labor Law applies with respect to the non-professional staff of an educational institution.

Although an administrator may have certain powers to administer a statute, he or she lacks authority to supplement or amend duly enacted legislation

Although an administrator may have certain powers to administer a statute, he or she lacks authority to supplement or amend duly enacted legislation

Hazan v WTC Volunteer Fund, 2014 NY Slip Op 04103, Appellate Division, Third Department

A former emergency medical technician [EMT] went to World Trade Center site to offer assistance in the rescue and recovery efforts on September 11, 2001. He served as a volunteer at a triage center that was being established at the Chelsea Piers and sorting supplies and setting up a treatment area. The following day, EMT went to ground zero, using his emergency medical technician card and badge to gain access to the site and attempted to search for survivors. The EMT, however, was not registered or affiliated with any volunteer organization or agency during the course of these two days, and he did not aid in the rescue or recovery operations after September 12, 2001.

In March 2010, EMT registered his participation as a volunteer in the World Trade Center rescue, recovery and/or cleanup operations with the Workers' Compensation Board and filed this claim for workers' compensation benefits for injuries allegedly sustained as a result of his exposure to dust and toxins at the sites at which he served as a volunteer pursuant to Workers' Compensation Law Article 8-A. A Workers' Compensation Law Judge [WCLJ] found that EMT had sustained a compensable injury and awarded him certain benefits. The World Trade Center Volunteer Fund, however, sought review of the WCLJ's decision, contending that EMT t failed to meet the definition of "volunteer" because he did not provide proof that he was acting under the direction and control of a volunteer agency.

The Workers’ Compensation Appeal reversed the WCLJ's decision, finding that EMT did not meet the definition of "first response emergency services personnel" as set forth in the final revised Order of the Chair No. 967 issued by the Board's chair in 2006 and, thus he did not qualify as a volunteer. EMT appealed.

The Appellate Division overturned the Board’s determination in view of the legislative history of Article 8-A, several bills were circulated in the Legislature that defined a "volunteer rescue worker" as one who "rendered service under the direction and control of an authorized rescue entity." Significantly, said the court, r, such language is not included in Workers' Compensation Law Article 8-A, and "[t]he deletion of this explicit language from the version of [Workers' Compensation Law Article 8-A]; that finally passed is persuasive evidence that the Legislature rejected" the more restrictive definition of volunteer that originally was proposed.

Further, the Appellate Division said that to the extent that the Board has consistently relied upon the final revised Order of the Chair No. 9 in denying benefits to volunteers who were not affiliated with an authorized rescue entity or volunteer association, “we need note only that while Workers' Compensation Law §141 vests the Board's chair with certain powers to administer the provisions of the Workers' Compensation Law, it does not vest him or her with the authority to supplement or amend duly enacted legislation.”

Citing Russomanno v Leon Decorating Co., whatever the net effect of such orders may be, they "cannot overrule the statute itself," neither the statutory language nor the legislative history supports the Board's requirement that an individual be affiliated with an authorized rescue entity or volunteer agency in order to qualify as a volunteer and, hence, be eligible for the coverage afforded under the statute.

Accordingly, the Appellate Division held that the Board's decision denying EMTs application for benefits upon this particular ground cannot stand, although EMT must still satisfy the time, location and activity elements of Workers' Compensation Law Article 8-A in order to be entitled to benefits. The court then remitted the matter to the Board “for consideration of those issues and, more to the point, the sufficiency of claimant's proof thereon.”