Claimant's willful misrepresentation on his or her application for unemployment insurance results in the imposition of both a recoverable overpayment and forfeiture penalty

Claimant's willful misrepresentation on his or her application for unemployment insurance results in the imposition of both a recoverable overpayment and forfeiture penalty
Campon (Commissioner of Labor), 2014 NY Slip Op 08298, Appellate Division, Third Department

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John J. Campon was terminated from his position as a result of his having engaged in a prolonged campaign of harassment against a coworker in violation of his employer's anti-harassment policy.

Campon, alleging that he had lost his employment due to lack of work, applied for and received unemployment insurance benefits. 

 

The Unemployment Insurance Appeal Board subsequently disqualified him from receiving unemployment insurance benefits based on its finding that he had been terminated from his employment as the result of his misconduct. The Board also charged Campon with a recoverable overpayment and forfeiture penalty due to his willful misrepresentations in his application for unemployment insurance benefits.

Campon appealed the Board's actions. The Appellate Division affirmed the Board's determinations, explaining that “There is no question 'that offensive behavior in the workplace which is detrimental to the employer's best interest constitutes disqualifying misconduct.'" Here, said the court, there was substantial evidence in the record to support the Board's rulings.

Further, the Appellate Division said that Compon's “inaccurately asserted that he was unemployed due to a lack of work when he applied for benefits,” and thus there was no reason to disturb either the Board's finding of willful misrepresentation or its imposition of both a recoverable overpayment and forfeiture penalty.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08298.htm
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Demonstrating a constitutional claim of member service credits bars their prehearing removal and the cancellation of the individual's retirement application by the retirement system

Demonstrating a constitutional claim of member service credits bars their prehearing removal and the cancellation of the individual's retirement application by the retirement systemKravitz v DiNapoli, 2014 NY Slip Op 08284, Appellate Division, Third Department

Jay A Kravitz, a licensed physician, provided part-time professional services to four public school districts since the mid-1980s. In the course of his providing such services, Kravitz was reported as a school employee to the New York State and Local Employees' Retirement System [ERS] and made annual employer contributions toward his public pension.

In a September 2011 letter from ERS notified Kravitz that ERS had been determined that he was an independent contractor rather than an employee of the school districts that he served and thus would lose approximately 20 years of member service credits in the Retirement System. Kravitz was also advised that [1] he had the right to a hearing to challenge the determination; [2] if no hearing was requested within four months, the service credits would be removed and [3] any contributions he made would be refunded.

Kravitz timely requested a hearing, but such a hearing had not been held as of the date of this decision by the Appellate Division. The court noted that the record includes a November 2012 letter from Kravitz's attorney requesting that the hearing be deferred until the following August due to Kravitz's absence from the country.

In October 2012, Kravitz filed an application with the Retirement System but ERS advised Kravitz that as a result of “the loss of approximately 20 years of service credits,” his remaining 1.55 years of service credits “rendered him ineligible to receive a pension benefit at that time.” Kravitz's attorney objected to ERS “removal of Kravitz's service credits” and requested that ERS process Kravitz's retirement application pending the hearing. ERS, however, advised Kravitz that he was not eligible for retirement benefits because he had insufficient years of service credits and canceled his retirement application.

Kravitz then commenced a CPLR Article 78 action seeking a judgment declaring that ERS' removal of his service credits and refusal to accept and process his retirement application was, among other things, arbitrary and capricious and a violation of due process. ERS asked Supreme Court to dismiss Kravitz's petition “for failure to state a cause of action” and for his failure to exhaust administrative remedies. Finding that Kravitz failed to exhaust his administrative remedies, Supreme Court granted ERS' motion.

ERS contended that inasmuch as it has not made a final determination with regard to Kravitz's service credits and retirement application, the matter is not ripe for judicial consideration, citing Swergold V Cuomo, 70 AD3d 1290. Kravitz argued that even though no hearing has occurred, the matter is ripe for judicial review because ERS had already removed his service credits and canceled his retirement application, resulting in a violation of his constitutional due process rights to such a predeprivation hearing.

The Appellate Division said that it agreed with Kravitz and vacated the Supreme Court's ruling.In Swergold the Appellate Division found that the member's due process claims “were rendered moot and/or were premature after the Retirement System restored their service credits pending administrative hearings and averred that it would not revoke those credits until the completion of such hearings.”

In contrast to Swergold, in Kravitz, said the court, ”not only has the Retirement System removed Kravitz's service credits, it has also canceled Kravitz's retirement application and has not represented that it would restore his service credits until his hearing is completed and a final determination is rendered.”

Accordingly, requiring Kravitz to exhaust his administrative remedies arguably could cause irreparable injury, for example, in the event of his death pending an administrative hearing.

Under these circumstances, said the Appellate Division, it concluded that Kravitz “has a cognizable constitutional claim regarding the prehearing removal of his service credits and cancellation of his retirement application that is ripe for our review and survives [ERS'] motion to dismiss.

As Kravitz's appeal was before the Appellate Division on ERS' pre-answer motion to dismiss, the court ruled that the matter must be remitted to Supreme Court to permit ERS to serve an answer to Kravitz's petition.

However, in a footnote to its ruling, Appellate Division said that “Considering the viability of the petition, we are of the view that [ERS] should be precluded from removing Kravitz's service credits and refusing to accept his retirement application until a final determination is made by Supreme Court with respect to the petition and by the Comptroller as to his employment status after an administrative hearing.”

The decision is posted on the Internet as:http://www.nycourts.gov/reporter/3dseries/2014/2014_08284.htm

Placing an employee on an involuntary leave of absence pursuant to Civil Service Law §72.5

Placing an employee on an involuntary leave of absence pursuant to Civil Service Law §72.5
2014 NY Slip Op 08273, Appellate Division, Third Department

This appeal considers the placement of an employee [Anonymous] (1) on an involuntary leave of absence pursuant to Civil Service Law §72.5 and [2] a subsequent determination by Anonymous’ appointing authority to terminate Anonymous’ employment pursuant to Civil Service Law §73.

Anonymous was employed as a police officer and was placed on involuntary leave by the appointing authority pursuant to Civil Service Law §72.5 after the appointing authority determined that there was probable cause to believe that the continued presence of Anonymous on the job represented a potential danger to persons or property or would severely interfere with agency operations.

Anonymous was then examined by a physician who found that Anonymous was “mentally unfit to perform the duties of his position at that time.”

Pursuant to a request by Anonymous' employee organization a hearing was conducted and the Hearing Officer issued a written decision on April 19, 2012 finding that Anonymous was properly subjected to an involuntary leave of absence approximately one year earlier due to being mentally unfit at that time and recommended that Anonymous be discharged from his position.* Anonymous appealed the determination and in November 2012 the New York State Civil Service Commission denied Anonymous' appeal of the appointing authorities determination to place him on such involuntary leave.

In a letter dated April 20, 2012, the appointing authority notified Anonymous that his employment was terminated effective March 31, 2012 pursuant to Civil Service Law §73.

In May 2012, Anonymous challenged the appointing authority’s determination to terminate his employment, requested that the determination be revoked and asserted that due process of law required a more recent medical evaluation of his mental fitness to perform his work duties, as no medical assessment had been conducted in more than a year. The appointing authority denied Anonymous' demand for a post-termination §73 hearing.

Anonymous commenced this proceeding to annul the Commission's determination regarding his placement on involuntary leave and to annul the appointing authority's determination to terminate his employment. He also sought a court order directing his reinstatement to his former position with back pay and benefits.

The Appellate Division rejected Anonymous' contention that he was denied pre-termination due process protections, explaining that “Minimum pre-termination due process requirements are satisfied where, as here, an employee is given notice of the grounds for possible discharge and some opportunity to respond." The record makes it clear that Anonymous was well aware of the appointing authority’s concerns with his mental ability to serve as a police officer and that he contested, at every turn, the allegations that his psychological condition was deficient prior to his discharge from employment.

The court, however, agreed with Anonymous' assertion that the failure to conduct a post-termination hearing was violative of his right to due process, noting that employees who are terminated from their positions pursuant to Civil Service Law §73 "are entitled to a full post-termination hearing."

The court, however, agreed with Anonymous' assertion that the failure to conduct a post-termination hearing was violative of his right to due process, Although the appointing authority speculated that “it is unlikely that Anonymous could produce medical evidence establishing his fitness to occupy his position as of the date of his termination from employment.” the Appellate Division said that were it to accept such reasoning, "it would allow an agency that is intent on terminating an employee to arbitrarily decide whether a post-termination hearing was necessary, a determination which flies in the face of existing law.”

In the words of the Appellate Division, “The rationale for providing [Anonymous] with a post-termination hearing is to afford him a final opportunity to present proof demonstrating how his mental condition changed, if at all, and whether he is able to perform his job duties as of the date of his termination. To deny Anonymous' request for a post-termination hearing was constitutionally infirm and, therefore, remittal of this matter is necessary for the completion of such administrative proceedings,” citing House v New York State Off. of Mental Health, 262 AD2d 929.

* Although the phrase used in the decision is "be discharged from his position," such termination is not a pejorative dismissal as §73, in pertinent part, specifically provides that an individual terminated from a §72 leave “may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission.” §73 further provides that “If, upon such medical examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his former position, he shall be reinstated to his former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field in his former department or agency. If no appropriate vacancy shall exist to which such reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed on a preferred list for his former position in his former department or agency, and he shall be eligible for reinstatement in his former department or agency from such preferred list for a period of four years.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_08273.htm

Allegations of unlawful discrimination based of the employer‘s failure to promote an individual to higher level positions

Allegations of unlawful discrimination based of the employer‘s failure to promote an individual to higher level positions
Okocha v City of New York, 2014 NY Slip Op 08261, Appellate Division, First Department

The Appellate Division ruled that Supreme Court was correct in dismissing the petition filed by Emmanuel O. Okocha, Esq. alleging unlawful discrimination” which was based on the City of New York’s failure to promote him from an Attorney Level II position to one of two Attorney Level III positions  posted in November 2006.

The court said the Okocha’s claim failed because the two Attorney Level III positions posted were never filled because “there was no longer a need” for them. Further, said the Appellate Division, the City did not  discriminate against him when it did not promote him from Attorney Level II to Attorney Level IV in January 2008, explaining that the two attorneys promoted to the Level IV  positions had previously been Level III attorneys and therefore were more qualified than Okocha for promotion to Level IV.

Okocha also contended that the City’s Human Resources Administration's (HRA) investigations into his maintenance of a private practice of law, which resulted in disciplinary action being taken against him, constituted adverse or differential treatment. The Appellate Division said that an arbitrator had sustained the misconduct charges filed against Okocha and sustained the penalty imposed, termination and thus the allegations of misconduct were fully substantiated and Okocha’s attempt to collaterally attack the arbitrator's findings of misconduct in this appeal “cannot now be countenanced.”

The court explained that the doctrine of collateral estoppel precludes considering Okocha's claim that the HRA misconduct investigations were initiated in retaliation for his commencement of this action as Okocha had raised this contention at the arbitration proceeding and the arbitrator expressly rejected it.

As to Okocha’s claim that the HRA failed to promote him in retaliation for his prior complaints of mistreatment is not barred by collateral estoppel, the Appellate Division held that it failed on the merits. HRA's actions in failing to promote Okocha, said the court, were not materially adverse or disadvantageous to him since, as noted earlier, the two positions listed in the November 2006 job postings were never filled and the January 2008 job postings “were filled by objectively better-qualified candidates.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_08261.htm
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A death benefit payable by a New York Employees’ Retirement System is a testamentary substitute that may permit a non-designated spouse to exercise his or her “right of election”

A death benefit payable by a New York Employees’ Retirement System is a testamentary substitute that may permit a non-designated spouse to exercise his or her “right of election”

Gopaul v New York City Employees' Retirement Sys., 2014 NY Slip Op 08020, Appellate Division, Second Department

Shakuntala Devi Tika Gopaul, the widow of a member of the New York City Employees' Retirement System (NYCERS), sued NYCERS after it refused to accept her late husband's fully completed and notarized designation of beneficiary form naming her as his sole beneficiary.

Gopaul filed her petition in Supreme Court seeking an order to require NYCERS to accept, as effective, a designation of beneficiary form naming her as the sole beneficiary of her late husband's death benefit rather than to her late husband's sons, who were previously designated as his beneficiaries.

The Appellate Division noted that this proceeding could potentially involve the administration of a decedent's estate because the death benefit payable by NYCTRS is a testamentary substitute against which the Gopaul could exercise a right of election even if it was determined that she was not the designated beneficiary.

As the Surrogate's Court declined to exercise jurisdiction over this proceeding before it was commenced in the Supreme Court, the Appellate Division said that the Supreme Court “providently exercised its discretion in denying that branch of NYCERS' motion s pursuant to CPLR §325(e) to remove this proceeding to the Surrogate's Court.”

The Appellate Division also ruled that Supreme Court properly denied NYCERS' alternative motion seeking to dismiss the Gopaul’s petition as time-barred. In this proceeding, which was in the nature of mandamus to compel NYCERS to perform a ministerial act, the Appellate Division said that the four-month statute of limitations begins to run "after the NYCERS's refusal, upon the demand of  [Gopaul] . . . to perform its duty."

As the filing of a CPLR Article 78 petition can itself be construed as a demand, the Appellate Division ruled that as Gopaul made her demand that NYCERS perform its duty to accept her late husband's fully completed and notarized designation of beneficiary form by filing the petition in this proceeding in February 2012, the petition is not time-barred.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08020.htm
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