Some guidelines followed by courts in deciding appeals from adverse out-of-title employee grievances

Some guidelines followed by courts in deciding appeals from adverse out-of-title employee grievances

New York State Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off. of Empl. Relations, 2015 NY Slip Op 02543, Appellate Division, Third Department

Civil Service Law §61(2) provides, in relevant part, that "no person shall be assigned to perform the duties of any position unless he [or she] has been duly appointed, promoted, transferred or reinstated to such position in accordance with [the statute] and the rules prescribed thereunder. An out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade, without a concomitant increase in pay, frequently, recurrently and for long periods of time"

A Safety and Security Officer 2 (SSO2), a salary grade 15 position, was advised that he would assume the duties of the Chief Safety and Security Officer (CSSO), a salary grade 20 position, at the facility upon the incumbent CSSO’s transfer to another facility. SSO2 was also told that he would be serving as the "Acting Chief" at that facility, an unofficial job title is not formally recognized by the Department of Civil Service.

The SSO2, alleging that he had performed the duties ordinarily assigned to the CSSO, filed an out-of-title work grievance seeking additional compensation for the duties he performed in his capacity as the facility's CSSO. Ultimately, the grievance proceeded to Step 3 to be considered by the Governor’s Office of Employee Relations [GOER].

Based on the limited duties listed in SSO2’s grievance form, the Division of Classification and Compensation of the Department of Civil Service (C & C) recommended that GEOR deny the grievance based on its finding that the work SSO2 was performing, in the absence of the CSSO, “either fell within the duties of an SSO2 or were a reasonable and logical outgrowth of those duties.

GOER adopted C & C’s recommendation and SSO2 initiated a CPLR Article 78 proceeding seeking a court order annulling GOER's determination. Supreme Court dismissed SSO2’s application, which ruling was appealed to the Appellate Division.

The Appellate Division affirmed the lower court’s decision. Citing CSL §61(2) the court explained that “An employee is not necessarily performing out-of-title work by fulfilling some overlapping functions of an absent supervisor, if those functions are substantially similar to duties listed in the classification standard for the employee's title.” In determining if the prohibition against out-of-title work has been violated, courts look "at the similarities between the duties assigned and those customarily performed by the employee, the extent to which the employee exercised the full range of duties of the higher level position, and whether the duties actually performed could be characterized as a reasonable extension of the employee's in-title duties."

Confining its review of the list of tasks performed by SSO2 set forth in his grievance form and not considering the expanded list of duties recited in the SSO2's underlying petition and SSO2’s affidavit in support his claim, the Appellate Division said that it must decide this matter based on the record that was before GOER and C & C. Finding that such record provided a rational basis for GOER's determination and that GOER’s determination was not arbitrary or capricious, the Appellate Division dismissed SSO2’s appeal.

SSO2 also contended that C & C and GOER acted arbitrarily and irrationally by deciding his grievance differently than that of another Safety and Security Officer 2 who was assigned to serve as the Acting CSSO at a different facility. However, this other Safety and Security Officer 2 asserted on her grievance form that she performed many more of the CSSO duties and stated that she, among other things,” supervised all 28 employees of her safety department across all three shifts.”

Considering this enhanced information, said the court, the record substantiates GOER’s' assertions that the facts presented by those two individuals were different, rationally leading to different outcomes.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02543.htm

The employer may reject the findings and recommendations of a hearing officer if its decision is supported by substantial evidence

The employer may reject the findings and recommendations of a hearing officer if its decision is supported by substantial evidence

2015 NY Slip Op 02474, Appellate Division, Second Department

The Fire District’s Board of Commissioners rejected the recommendation of a hearing officer and denied a firefighter’s application for benefits pursuant to General Municipal Law §207-a(2).

The Appellate Division sustained the Board’s decision, explaining that it was entitled to make a finding contrary to the hearing officer's recommendation as long as substantial evidence supported the determination. The court said that the Board was free to credit the expert of the Fire District over the firefighter's expert so long as testimony of the Fire District's expert was consistent and supported by the medical evidence.

Noting that judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence, the Appellate Division said that "Substantial evidence means more than a mere scintilla of evidence, and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides."

Further, said the court, "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]” and the courts may not weigh the evidence or reject the choice made by the administrative agency where “the evidence is conflicting and room for choice exists."

Finding that the Board's determination was supported by substantial evidence, the Appellate Division confirm the Board’s rejection of the firefighter’s application for GML §207-a(2) benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02474.htm

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Disciplinary action based on alleged sexual misconduct

Disciplinary action based on alleged sexual misconduct

2015 NY Slip Op 02418, Appellate Division, First Department

A former teacher [FT] was served with disciplinary charges pursuant to Education Law §3020-a alleging that he “hugged and kissed another teacher at least once a week for two months, despite her continually communicating to him that she did not want him to do this.” This unwanted contact escalated in a later encounter. The arbitrator found FT guilty of sexual misconduct towards another teacher and FT was terminated from his employment.

FT then filed an Article 75 petition seeking to vacate the arbitration award. Supreme Court denied FT’s motion and granted FT’s employer’s cross-motion to dismiss FT's petition and confirmed the arbitration award. The Appellate Division unanimously affirmed the lower court’s ruling, noting that the teacher had told FT several times that she did not want to meet with him and wanted no further contact.

The court held that the hearing officer “reasonably found” that under these circumstances that FT’s asking to embrace the teacher, and telling her to keep things between themselves also constituted misconduct in violation of the [employer’s] sexual harassment policies.”

The Appellate Division ruled that in consideration of the “egregious nature” of FT’s misconduct and the hearing officer's conclusion that FT did not credibly display remorse or an appreciation for the seriousness of his actions, the penalty of termination was appropriate notwithstanding FT's twenty-year satisfactory employment history

In another case involving alleged sexual misconduct, Jane Doe v New York City Department of Education [DOE], 2015 NY Slip Op 02433, it was undisputed that a substitute teacher [ST] and ST’s infant student plaintiff [Plaintiff] had unlawful sexual intercourse at a motel after school hours. The court, however, dismissed Plaintiff’s vicarious liability claim against DOE because ST's alleged conduct was not in furtherance of school business and was outside the scope of his employment.

The court also dismissed Plaintiff’s negligent supervision claim, explaining that the misconduct occurred after school hours and off school premises and that Plaintiff “failed to present evidence sufficient to raise a triable issue of fact that school authorities had specific knowledge or notice of [ST’s] misconduct or that [ST's] misconduct could reasonably have been anticipated.” Although there was evidence that ST drove Plaintiff and others home from school in violation of a Chancellor regulation, this, said the court, was insufficient to raise an issue of fact as to whether DOE had actual or constructive notice of sexual misconduct.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02418.htm

The Doe decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02433.htm

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Any action to terminate a disability retirement allowance then being received by a NYC police officer must be approved by the NYC Police Pension Fund's Board of Trustees

Any action to terminate a disability retirement allowance then being received by a NYC police officer must be approved by the NYC Police Pension Fund's Board of Trustees

2015 NY Slip Op 02011, Appellate Division, First Department

A former New York City Police Department police officer on disability retirement [DR] was discovered performing construction work while claiming to be disabled. as the result of a lengthy NYPD investigation, including videotaped observations showing DR performing construction work on a daily basis without apparent difficulty.

Based on the NYPD reports, the Police Pension Fund's Board of Trustees remanded DR's disability application to the Medical Board for reconsideration. The Medical Board concluded that DR's condition had improved dramatically, and recommended disapproval of his disability application and the Board of Trustees voted to place DR on a list of candidates eligible to become police officers.*

Subsequently DR became medically disqualified for the position after he tested positive for cocaine.and the City's Law Department advised the Police Pension Fund that DR was no longer disabled and was no longer eligible for reinstatement to the position of police officer. The Fund's Board of Trustees, however, did not act on this information and the Fund's Director of Pension Payroll simply informed DR that his disability pension benefit would be suspended.

DR filed an Article 78 petition to annul the Director's suspension of DR’s accidental disability retirement [ADR] benefits, contending that the suspension of his disability was arbitrary and capricious. In the alternative, DR sought his reinstatement as a police officer. Supreme Court dismissed the petition in its entirety, finding that "the determination of the Medical Board that [DR] was no longer disabled was supported by ample evidence derived from physical examinations and contained in the medical records reviewed."

The Appellate Division explained that like Supreme Court, "[it] reject[ed] [DR's] challenge to the Medical Board's determination that [DR] is no longer disabled, since that determination is supported by ’some credible evidence’ and ‘was not arbitrary and capricious."

However, it reversed the Supreme Court’s dismissal of DR’s petition, finding that the "suspension" or revocation of DR's disability benefits by the Police Pension Fund was without statutory authority, because “it was not directed by the Board of Trustees," finding that "[t]he last determination issued by the Board in this matter was that[DR] was not disabled and should be returned to work as a police officer" took place prior to DR’s testing positive for cocaine, which made him ineligible to return to duty.

The City appealed the Appellate Divisions ruling that any action to terminate a disability retirement allowance then being received by a NYC police officer must be approved by the NYC Police Pension Fund's Board of Trustees to the Court of Appeals, which rejected the City’s argument that because DRr was no longer entitled to ADR benefits, ceasing to pay the benefits was a "purely ministerial act" and affirmed the Appellate Division’s order annulling the termination of DR's pension benefits**.

The Court of Appeals said that the "Appellate Division correctly held that the ADR benefits can be terminated only by the trustees of the Police Pension Fund, who have not taken the necessary action," explaining, in pertinent part:

However well justified a reduction or termination of benefits may be in this case, the Board of Trustees has to do it. There might be cases in which the impropriety of paying benefits is so obvious that Pension Fund employees can simply stop paying, without either advance approval or ratification from the board; this might be true, for example, if the statute said on its face, "No benefits shall be paid to any beneficiary who has a positive drug test." But the application of the confusing safeguards statute to this case is something the trustees must address. Of course the trustees should weigh the advice of the City's Law Department in deciding the question, but the decision is theirs, subject to appropriate judicial review.

On remand to the Board of Trustees the City moved to terminate DR's ADR benefits retroactively to July 2007, when his ADR benefit was suspended by the Police Pension Fund. 

There was a tie vote (6 in favor of termination of benefits and 6 against termination of benefits. The City took the position that the tie vote meant that the benefits had not been reinstated by the Board of Trustees and DR commenced another action seeking to compel the City to retroactively restore his ADR benefits.

Supreme Court denied the petition to the extent DR sought reinstatement of the ADR benefits but granted the petition to the extent DR sought reinstatement to the position of police officer. Both DR and the City appealed.

The Appellate Division said it agreed with the City that Supreme Court erred in granting that part of DR's petition seeking his reinstatement to the position of police officer as Supreme Court’s direction to reinstate DR to his position of police officer was inconsistent with Administrative Code §13-254, in that DR rendered himself unqualified by reason of a positive drug test for cocaine, a fact not known to the Trustees at the time they directed that petitioner's name be placed on the civil service list of persons eligible to be a police officer.

In contrast, the Appellate Division rejected the City's contention that the Police Pension Fund's July 2007 termination of DR's ADR benefits remains in effect until a majority of the Board of Trustees votes to reinstate his ADR benefits. Such position said the court is contrary to its prior decision and order that explicitly "restore[d] said benefits" and noted that the Court of Appeals affirmed that determination.

While the Appellate Division said that “like the Court of Appeals,” it found this case "very troubling" because DR's pension benefits should have been reduced or terminated once he tested positive for cocaine, the statute makes clear that any action under the statute must be taken by the Board of Trustees. 

The bottom line: As DR forfeited his right to be placed on the "preference list" for appointment to the position of police officer when he disqualified himself by testing positive for cocaine, the Board of Trustees must now make a determination with respect to DR's entitlement to ADR benefits. 

Here said the court, the Board has two options under the law:

1. Terminate DR’s ADR benefits; or

2. Reduce DR’s ADR benefits.

Absent Board action, DR is to receive ADR benefits retroactive to July 18, 2007, the date of the improper termination of benefits by the Police Pension Fund.The Appellate Division then remanded the matter to the Board of Trustees “for immediate action consistent with this decision and order.”

* New York City's Administrative Code (see §§ 13-202[a], [b]; 13-216[a], [b]; 13-254), provides that a disability pensioner found able to work could be required to return to City service.

** See 16 NY3d 561.

The Decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02011.htm

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Disability Benefits for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and similar statutes providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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An employer’s failure to make an individualized assessment of a disabled applicant’s particular abilities to perform the duties of the position required constitutes unlawful discrimination

An employer’s failure to make an individualized assessment of a disabled applicant’s particular abilities to perform the duties of the position required constitutes unlawful discrimination

Brentwood Union Free School Dist. v Kirkland, 2015 NY Slip Op 02121, Appellate Division, Second Department

In an appeal challenging a determination by the Commissioner of the New York State Division of Human Rights, made after a hearing before an administrative law judge who found that the Brentwood Union Free School District, unlawfully discriminated against the complainant, the Appellate Division explained that the scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination of the New York State Division of Human Rights is supported by substantial evidence* in the record. Further, said the court "Courts may not weigh the evidence or reject the Division's determination where the evidence is conflicting and room for choice exists."

Here there was substantial evidence in the record to support a conclusion that Brentwood unlawfully discriminated against the complainant by denying him employment based solely on his membership in a class of persons with the same condition, chronic obstructive pulmonary disease, instead of upon an individualized assessment of his particular abilities.

While Brentwood did offer some evidence at the hearing that the complainant's condition may have prevented him from performing the duties of the job in a reasonable manner, the decision points out that Brentwood did not have this information at the time it made its determination not to employ the complainant.

In any event, said the Appellate Division, “this evidence merely conflicted with other evidence in the record indicating that the complainant's disability did not render him incapable of performing the duties of the job in a reasonable manner" and “it is the function of the administrative agency, not the reviewing court, to weigh the evidence or assess the credibility of the witnesses.”

The Appellate Division confirmed the findings of the Division and its award of damages in the principal sums of $66,488 for back pay, and $5,000 in compensatory damages, with interest at the rate of 9% from June 14, 2012, for mental anguish and humiliation to the complainant.

* The Court said that substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact . . . . More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt"

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2015/2015_02121.htm