Employer has the burden of proving an individual cannot perform the essential functions of the position regardless of any reasonable accommodation provided

Employer has the burden of proving an individual cannot perform the essential functions of the position regardless of any reasonable accommodation provided

2015 NY Slip Op 03465, Appellate Division, First Department

Supreme Court granted the New York City’s Department of Sanitation’s [DOS] motion to dismiss the Article 78 petition filed by an applicant [Applicant] for employment with DOS alleging “disability-based” unlawful discrimination “for failure to state a cause of action.”

Applicant appealed and the Appellate Division unanimously reversed the lower court’s ruling.

Applicant claimed that DOS refused to hire him, notwithstanding he otherwise proved qualified for employment as a sanitation worker based solely on his having a psoriasis condition on his hands. This said the court “makes out causes of action for disability-based discrimination under the New York State and New York City Human Rights Laws.”

The State Human Rights Law required Applicant to plead that he could perform the essential functions of the job if he were afforded reasonable accommodation. Here, said the Appellate Division, Applicant’s complaint alleged that gloves would have constituted a sufficient accommodation to enable him to perform the work satisfied this requirement.

The court then explained that whether DOS was justified in considering Applicant’s psoriasis disqualified him for the position “on the grounds that the condition would have prevented him from performing the essential functions of the position" and “no accommodation (including gloves) would have obviated the interference” cannot be determined from the face of the complaint and the documentary exhibits annexed to it.

Although DOS had submitted evidence in support of its motion tending to show that Applicant's condition rendered him incapable of performing the job of a sanitation worker, its motion was not one seeking summary judgment and thus Supreme Court should have denied its motion to dismiss Applicant’s petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03465.htm

An employee, as an active participant in a work-related tragedy rather than as a bystander, is eligible for workers’ compensation benefits

An employee, as an active participant in a work-related tragedy rather than as a bystander, is eligible for workers’ compensation benefits

126 AD3d 1250

In this Workers’ Compensation case an employee [Claimant] alleged that she had  sustained a compensable work-related mental injuries after she responded to the suicide of a patient.

A Workers' Compensation Law Judge found Claimant had disabling depression, anxiety and posttraumatic stress disorder stemming from that incident. The Workers' Compensation Board affirmed, and the self-insured employer and its third-party administrator [Employer] controverted the Board’s decision and appealed.

The Appellate Division affirmed the Board’s ruling, explaining that psychological injuries caused by witnessing the aftermath of a suicide have been held to be compensable where "the claimant was an active participant in the tragedy," as opposed to a bystander, citing Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505.

Here, said the court, a patient leapt from a window at the facility where Claimant worked.   Claimant was one of the first workers to reach the scene and, despite her lack of medical training, was directed by her supervisor to retrieve an oxygen tank for the patient.

In the words of the Appellate Divisions: “Claimant did so, but began to feel anxious and hyperventilate and ‘lost it’ altogether after she was ordered by facility officials not to speak to investigators about her prior interactions with the patient.”

This, said the court, constituted substantial evidence for the Board's finding that Claimant was indeed an active participant in the events surrounding the suicide and that the Board was free to, and did, “credit medical evidence indicating that [Claimant} developed disabling depression, anxiety and posttraumatic stress disorder as a result of the incident.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02533.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 25, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 25, 2015

Click on text highlighted in color to access the full report

New York State Comptroller Thomas P. DiNapoli announced office released audits of State Department and Agencies have been issued:

Department of Motor Vehicles

Posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093015/15s7.pdf

Department of Transportation

Posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093015/14s52.pdf

and the

Workers’ Compensation Board

Posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093015/14s43.pdf

New York State Comptroller Thomas P. DiNapoli  announced his office completed audits of the

Town of Champion Great Bend Fire District – Controls Over Financial Operations (Jefferson County)
The district has not submitted the required annual financial reports to the Office of State Comptroller for the 2011 through 2013 fiscal years. The district did not submit its tax levy limit calculations for 2015 or the three prior years. Auditors calculated the levy limit for 2015 and found the district’s proposed 2015 tax levy exceeded the statutory limit by $4,394 and the board did not pass a resolution to override the limit.

Chenango County – Departmental Cash Receipts (2015M-21)
County officials have ensured cash receipts are properly collected, recorded and deposited. Department officials have implemented effective controls including issuing duplicate receipts, segregating key financial duties, performing monthly reconciliations and cross-checking their records with the monthly treasurer’s report.

Jefferson County Soil and Water Conservation District – Internal Controls Over Selected Financial Operations (2014M-171)

The board was not provided with the necessary financial reports and information to properly oversee operating and grant activities or to develop realistic or structurally balanced budgets. As a result, the district borrowed $669,000 from grant funds to help pay operating costs.

Village of Woodsburgh – Claims Processing and Information Technology (Nassau County)
The board did not perform an effective claims audit to ensure transactions were properly authorized and approved or claims were for proper village purposes. The board also did not adopt a comprehensive IT policy or establish procedures addressing crucial aspects of IT security.


New York State Comptroller Thomas P. DiNapoli today announced his office completed audits of the

Campbell-Savona Central School District – Budget Review (Steuben County)
The significant revenue and expenditure projections in the tentative budget are reasonable. The district consistently appropriates fund balance that is not needed to fund operations. Two of the district’s reserves totaling $1.14 million appear to be overfunded. The district’s tentative budget complies with the property tax levy limit.

Cortland City School District – Budget Review (Cortland County)
The district has overestimated appropriations for payroll, health insurance, retirement, debt and utilities by $3.2 million. After the district’s planned use of $500,000 in fund balance, the remaining unassigned fund balance is only $200,000, or 0.4 percent, of the ensuing year’s appropriations. The district’s preliminary budget complies with the tax levy limit.

Fort Edward Union Free School District – Financial Condition (Washington County)
Although the board adopted reasonable budgets that included realistic estimates based on historical or known trends, the district relied on the appropriation of fund balance to finance recurring expenditures and, as a result, the budgets were not structurally balanced. As of June 30, 2014, the district reported an unrestricted fund balance that totaled $35,463, or .33 percent, of the ensuing year’s budgeted appropriations. District officials have developed a multiyear financial plan to address current and long-term financial trends.
 
Glens Falls Common School District – Financial Condition (Warren County)
The board did not adopt structurally balanced budgets that funded recurring expenditures with recurring revenues for the general fund for 2012-13, 2013-14 or 2014-15 fiscal years. Furthermore, the district’s general fund operating cash balance decreased by approximately $370,000 in one year. As a result, the district had to issue a tax anticipation note to meet cash flow needs during the 2014-15 fiscal year.

West Seneca Central School District – Financial Condition (Erie County)
The district had no operating cash on hand and very little fund balance at the end of 2013-14 fiscal year. The district incurred significant operating deficits in fiscal years 2010-11 through 2012-13. In addition, the district issues short-term debt to provide temporary cash flow and has improperly used a total of $7.5 million in reserve fund cash to help with cash flow in fiscal years 2012-13 and 2013-14.



Audit finds an additional $150,000 was stolen by an official of the Town of Beekman

Former Beekman Comptroller Frederick D. Knapp Jr. pleaded guilty to grand larceny in the second degree last Friday in Dutchess County Court after an audit and investigation by State Comptroller Thomas P. DiNapoli uncovered a second theft of $150,000 in town funds, following an earlier admission by Knapp of stealing $390,000 while in office.

Posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/towns/2015/beekman.pdf

Fiscal Stress Scores for 17 cities released 
State Comptroller Thomas P. DiNapoli issued fiscal stress scores  for the 17 cities in New York that have fiscal years ending between March 31 and July 31.

Posted on the Internet at:: http://www.osc.state.ny.us/localgov/fiscalmonitoring/villagescities_stressed2014.htm

To search for a specific local government’s fiscal stress scores, visit:
http://wwe1.osc.state.ny.us/localgov/fiscalmonitoring/fsms.cfm
 

For an overview of Comptroller DiNapoli’s Fiscal Monitoring System, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

Audits find more than $500 Million in Medicare waste

State Comptroller Thomas P. DiNapoli’s audits identified a total of $513 million in improper Medicaid payments and untapped revenue opportunities over a four-year period, according to a report released Wednesday. Auditors identified another $361 million in questionable transactions that will require further review and actions to prevent overpayments or recover costs.

Posted on the Internet at: http://www.osc.state.ny.us/audits/15d1.pdf

Eleven individuals nominated, recommended for appointment or appointed to Governor Cuomo’s administration

Eleven individuals nominated, recommended for appointment or appointed to Governor Cuomo’s administration

Source: Office of the Governor

On April 23, 2015Governor Andrew M. Cuomo announced the following nominations for appointment, recommendations for appointment and individuals appointed to his administration with the Departments and Agencies indicated.

Gerrard P. Bushell will be nominated to serve as President and Chief Executive Officer of the Dormitory Authority of the State of New York. Mr. Bushell is an accomplished investment advisor who counsels some of the nation’s leading institutional investors on their private and public investment strategies. He is currently a Senior Relationship Advisor in BNY Mellon's alternative and traditional investment management businesses. Prior to joining BNY Mellon, he held a number of Senior Advisory roles, including Director in the Client and Partner Group at Kohlberg Kravis Roberts & Co. (KKR), Managing Director in Business Development at Arden Asset Management and Head of Institutional Sales at the Legg Mason affiliate ClearBridge Advisors (formerly Citi Asset Management). Gerrard has deep experience working in New York State Government, having served as a Senior Officer to New York State Comptroller H. Carl McCall, a sole trustee of the New York State Common Retirement Fund and a leading institutional investor. Mr. Bushell is a graduate of Columbia University, where he received a B.A., M.A. and Ph.D. in Political Sciences. This nomination requires Senate confirmation.

Jerry Boone will be nominated to serve as Commissioner of the Department of Taxation and Finance. His nomination replaces that of Kenneth Adams, who will return to the private sector in June. Mr. Boone currently serves as President and Commissioner of the Civil Service Commission, overseeing New York’s workforce as principal human resources partner and employee benefits manager for the Executive Branch of state government, which employs 150,000 people. He previously served as Managing Principal of Boone Consulting and, prior, was President and Founder of Pride Properties, LLC, owning a portfolio of rental and company-financed properties in the Mid South. He held a number of roles at Caesars Entertainment, Inc./Harrah’s Entertainment, Inc., from legal counsel to head of gaming operations at a major subsidiary, culminating in the role of corporate Senior Vice President and HR, Integration & Internal Communication Leader. He also served as Commissioner of the New Jersey Casino Reinvestment Development Authority and Solicitor General in the New York State Attorney General’s Office. Mr. Boone has a B.A. from Columbia University and a J.D. from Boston College Law School. This nomination requires Senate confirmation.

Sabrina Ty has been recommended to serve as President and CEO of the Environmental Facilities Corporation. This recommendation must be approved by the EFC Board of Directors. Ms. Ty most recently served as Special Counsel to the Commissioner in the Office of General Services, where she oversaw several of the Governor’s Enterprise initiatives for achieving savings, supervised the implementation of the Service-Disabled Veteran-Owned Business Program and managed the agency’s MWBE program. She previously served as Governor Cuomo’s Deputy Secretary for Legislative Affairs and, prior, held a number of positions for the New York State Assembly, culminating in Legislative Counsel to the Speaker. Ms. Ty has a B.A. from McGill University in Montreal and a J.D. from Albany Law School.

Margaret A. Tobin has been appointed Senior Vice President of Development for the Jacob K. Javits Convention Center in New York City. Ms. Tobin most recently served as Chief Financial Officer of Empire State Development, where she oversaw the $1.6 billion bond financing of World Trade Center 3. Ms. Tobin joined the Cuomo administration in 2012 as Executive Director of the New York Works Task Force, leading the Governor’s initiative to overhaul the capital investment process for New York State. In that role she led the development of New York State’s first-ever, 10-year, Statewide Capital Plan, coordinating $174 billion in capital investment across 47 agencies and authorities, and oversaw more than 600 projects valued at more than $1.5 billion, while achieving a 100% on-time, on-budget performance. During her distinguished career, Ms. Tobin has served as a Principal at Cherry Tree Development, as Executive Vice President of Development for Thor Equities, a Vice President of Development at Vornado Realty Trust, Executive Vice President and Chief Financial Officer for the Hudson River Park Conservancy, and Director of Economic Development for the Mayor’s Office of Finance & Economic Development. Ms. Tobin earned a B.A. from Vassar College and an M.B.A. from Stanford Business School.

Axel Bernabe has been appointed Assistant Counsel to the Governor with a focus on Health. Mr. Bernabe most recently served as a Partner with Constantine Cannon, P.C., where for over 10 years he specialized in healthcare, antitrust and complex commercial litigation, as well as on providing corporate compliance advice to companies in the healthcare and insurance industries. He previously served as an associate at Coudert Brothers, LLP, and articled with the Canadian Department of Justice. Mr. Bernabe has both a Bachelor of Laws (J.D. equivalent) and a Bachelor of Civil Laws from McGill University Faculty of Law, and a B.A. from the University of Ottawa.

Mehul J. Patel has been appointed Chief Operating Officer and Chief of Staff at Empire StateDevelopment. Mr. Patel currently serves as Chief of Staff at ESD and will be adding the COO role to his responsibilities. He previously served as Vice President of the Moynihan Station Development Corporation, working with public and private stakeholders to expand New York’s Penn Station into the historic James A. Farley Post Office Building. Prior to this role, he was a Senior Project Manager for The Hudson Companies and was a Senior Analyst at HR&A Advisors. Mr. Patel was recently named to the Global 40 Under 40 by Urban Land. He has a B.A. from Yale University and an M.S. from Columbia University.

Heriberto (Ed) Vargas has been appointed Director of Labor Relations for the Department of Labor. He is a veteran New York City labor leader with more than 30 years of experience working on economic, political and social justice issues affecting working families in New York State, nationally, and internationally. He previously served as a consultant to Amalgamated Life Insurance Company and as Assistant to the President of Workers United, SEIU. He also served as Director of Mobilization at UNITE HERE and in various posts at the former International Ladies Garment Workers Union (ILGWU). Mr. Vargas served in the US Air Force during the Vietnam War, from which he was honorably discharged as a Staff Sergeant. He attended Herbert H. Lehman College, City University of New York.

Shareema Abel has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance for Homes and Community Renewal. She currently serves as Litigation Attorney in the Teacher Performance Unit of the New York City Department of Education, where she was lead counsel on disciplinary hearings of tenured pedagogues. She previously served as an Assistant District Attorney in Gangs/Major Case/Homicide Bureau of the Bronx County District Attorney’s Office. Ms. Abel has a J.D. from Hofstra University School of Law and a B.A. from Binghamton University.

Linda Donahue has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance for the Division of Homeland Security and Emergency Services. Ms. Donahue currently serves as Senior Counsel for the New York City Law Department, where she litigated and managed federal civil rights class actions and wrongful conviction cases. She was previously a partner at Kostelantetz & Fink, LLP, and Counsel at Frankel & Abrams. Ms. Donahue has a J.D. from New York University School of Law and a B.A. in Social Work from Florida State University.

Nika Milbrun has been appointed Assistant Director of Constituencies for African American and Women’s Affairs for the Executive Chamber. Ms. Milbrun most recently served as Regional Field Director for Terra Strategies on behalf of the Democratic Congressional Campaign Committee. She previously was the Field Director for Dell Smitherman’s 2014 State Senate campaign and, prior, was a Special Assistant for the UN Child Rights & Business Workshop. She was also a Community Outreach Coordinator for the New York State Senate Democratic Conference. She served as Regional Field Organizer for One Nation Working Together as well as David Yassky's campaign for New York City Comptroller. Ms. Milbrun attended Baruch College.

Matthew L. Ossenfort has been appointed to serve on the State Workforce Investment Board. Mr. Ossenfort was elected Montgomery County Executive in November 2013. At 33, he is the youngest sitting county executive in New York State. He was born and raised in Amsterdam, attended Amsterdam City Schools and is a lifelong resident of Montgomery County. Upon graduation, he began work in the New York State Assembly, where he worked for various members in different capacities. In 2007, he became Chief of Staff to Assemblyman George Amedore. He is also the founding member and president of Habitat for Humanity Montgomery County NY. Prior to being elected as Montgomery County’s first Executive, he worked as a Senior Legislative Analyst with the New York State Senate. Mr. Ossenfort holds a Bachelor's Degree in Political Science and History from the University at Albany.

Internal Revenue Service’s requirements that apply to public employers

Internal Revenue Service’s requirements that apply to public employers

Source: The United States Internal Revenue Service

The Internal Revenue Service is offering a free “Compliance Self-Assessment Tool for Government Entities” on May 14, 2015; 2 p.m. (EST)

To Register click on: http://www.visualwebcaster.com/IRS/102153/reg.asp?id=102153

N.B. You will use this same link to attend the event.

The Self-Assessment Tool will assist public entities to:

Identify legal requirements that apply to public employers;

Recognize unique federal income, social security and Medicare taxes and public retirement system obligations;

Gain awareness of potential compliance issues; and

Understand the most common tax issues