Inability to Work With a Particular Supervisor is Not a Disability

Inability to Work With a Particular Supervisor is Not a Disability

By Arkady Itkin -  http://www.sanfranciscoemploymentlawfirm.com/

 

Generally, an employee who suffers from anxiety / stress depression as a result of working for a particular supervisor is not entitled to having a different manager as a reasonable accommodation to that disability.

Read more at: https://casetext.com/links/2ww9mkb0somr24pftydgba707

Probationary employee has the burden of showing his or her termination was made in bad faith or for an unlawful reason

Probationary employee has the burden of showing his or her termination was made in bad faith or for an unlawful reason 

2015 NY Slip Op 02220, Appellate Division, First Department

The Appellate Division sustained a Supreme Court’s dismissal of a probationary employee’s [Probationer] “motion to renew,” explaining that the lower court “properly determined that there was no basis to annul [the appointing authority’s determination to discontinue Probationer’s employment as an assistant principal

Probationer, said the court, failed to show that the appointing authority’s determination, upon reinvestigation and reconsideration, was made in bad faith, in violation of lawful procedure, or for a constitutionally impermissible purpose.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02220.htm

The State Constitution’s prohibition of gifts of public funds is not necessarily applicable in situations involving labor-management relations between public employees and public employers under the Taylor Law

The State Constitution’s prohibition of gifts of public funds is not necessarily applicable in situations involving labor-management relations between public employees and public employers under the Taylor Law

2015 NY Slip Op 03837, Appellate Division, Second Department

Introducing its decision in this appeal with the statement "Judicial review of an arbitrator's award is extremely limited," the Appellate Division explained that "A party seeking to overturn an arbitration award on one or more grounds stated in CPLR 7511(b)(1) bears a heavy burden, and must establish a ground for vacatur by clear and convincing evidence."*

In this action, Nassau County, the Appellant, asked Supreme Court to vacate an adverse arbitration award on the grounds that the award was against public policy. Supreme Court denied the County's motion and confirmed the arbitrator’s decision against the County, sustaining the arbitrator's award of $27,049.20 against Nassau.

The Appellate Division subsequently rejected the County’s appeal of the Supreme Court's ruling.

The court said that an arbitration award violates public policy “only where a court can conclude, without engaging in any extended fact-finding or legal analysis, that a law prohibits the particular matters to be decided by arbitration, or where the award itself violates a well-defined constitutional, statutory, or common law of this state," citing Reddy v Schaffer, 123 AD3d 935.

Addressing Nassau County's argument that the payment of public funds as damages for its breach of a contractual obligation under a collective bargaining agreement was prohibited by Article VIII, §1, of the New York State Constitution,** the Appellate Division rejected the County’s theory, citing Gagliardo v Dinkins, 89 NY2d 62.

In Gagliardo the Court of Appeals said “the constitutional prohibition on gifts of public funds is not necessarily subject to statutory definitions of terms or conditions of employment for purposes of governing labor-management relations between civil service employees and public or governmental employers under the Taylor Law.”

Finally, the Appellate Division found that the challenged arbitration award did not exceed a specifically enumerated limitation on the arbitrator's power, rejecting Nassau County’s argument to the contrary.

Accordingly, said the Appellate Division, Supreme Court properly denied the County’s petition to vacate the arbitration award and properly confirmed the award, entering judgment against Nassau in the principal sum of $27,049.20.

* Essentially, an arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeded his or her power; or (4) the failure to follow the procedures of CPLR Article 75. In addition, an arbitration award may be vacated pursuant to CPLR §7511(b)(1)(iii) where "an arbitrator . . . exceeded his or her power," which includes those circumstances in which the award "violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

** Article VIII, 1, prohibits, in pertinent part, the making of a gift of public monies.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03837.htm

A claim that an employee organization has breached its duty of fair representation must be timely raised by the aggrieved individual

A claim that an employee organization has breached its duty of fair representation must be timely raised by the aggrieved individual
2015 NY Slip Op 03810, Appellate Division, Second Department

An employee organization’s duty of fair representation is the legal duty requiring the employee organization to represent every employee in the negotiating unit in good faith,  regardless of whether the employee is a member of the employee organization or not.

In Cox v Subway Surface Supervisors Association, et al., 69 AD3d 438, the Appellate Division noted that [1] the individual must be in the negotiating unit represented by the employee organization’s when the alleged breach of the employee organization’s duty of fair representation is alleged to have occurred;* and [2] the fact that the individual disagrees with the employee organization’s action or negotiating position does not, without more, constitute proof of the employee organization’s failure of its duty of fair representation.

In any event, a claim that the employee organization had breached its duty of fair representation must be timely filed.

In this action an arbitrator confirmed the decision to terminate the plaintiff's [Plaintiff] employment on October 10, 2008. The employee organization allegedly notified the Plaintiff or about on October 10, 2008 that it would not appeal the arbitrator's determination. 

Supreme Court found that the employee organization had demonstrated that the Plaintiff did not commence this action until 2010, significantly more than four months after Plaintiff’s claim for the alleged breach of the duty of fair representation accrued. Accordingly, Supreme Court dismissed Plaintiff’s petition as time-barred.

The Appellate Division affirmed the lower court’s determination, explaining that the employee organization had met its prima facie burden by establishing that the cause of action alleging that it breached its duty of fair representation was untimely and that  Plaintiff had failed to raise a triable issue of fact. 

Citing Guggenheimer v Ginzburg, 43 NY2d 268, the court further ruled that Supreme Court had  also properly granted that branch of the employee organization’s motion to dismiss Plaintiff’s amended complaint seeking to recover damages for discrimination "for failure to state a cause of action pursuant to CPLR 3211(a)(7)."

* To the same end, in Burnham and UFT, 28 PERB 4590, PERB ruled that the union's "duty of fair representation" runs only to employees; there is no such duty with respect to former unit members such as retirees. However, in Baker v Irondequoit CSD, 70 NY2d 314, the Court of Appeals held that a union's duty to process a former employee's grievance, under some circumstances, survives the employee's separation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03810.htm

The Doctrine of Equitable Estoppel will not be applied where the individual had sufficient knowledge to bring a timely action

The Doctrine of Equitable Estoppel will not be applied where the individual had sufficient knowledge to bring a timely action

2015 NY Slip Op 04050, Appellate Division, First Department

Supreme Court dismissed the employee’s petition [Petitioner] seeking to annul the appointing authority’s termination of her employment as untimely.The Appellate Division affirmed the lower court’s ruling explaining that the appointing authority had made its “final determination” on March 7, 2011 and Petitioner had not made her demand for arbitration until after the expiration of the four-month statute of limitations.

The court cited Joseph Francese, Inc. v Enlarged City School Dist. of Troy, 95 NY2d 59. In Francese the Court of Appeals ruled that where the individual served a demand for arbitration within the applicable statute of limitations, the running of the Statute of Limitations is tolled.

The relevant statute, CPLR 204 (b), provides that “Where it shall have been determined that a party is not obligated to submit a claim to arbitration, the time which elapsed between the demand for arbitration and the final determination that there is no obligation to arbitrate is not a part of the time within which an action upon such claim must be commenced.”  

In addition Petitioner had contended that the doctrine of equitable estoppel should be applied to toll the period between Petitioner's termination and her demand for arbitration.

The Appellate Division disagreed, noting that the record indicated that Petitioner “knew or should have known of the proper mechanisms to challenge the appointing authority’s decision before the expiration of the statute of limitations.” As the Court of Appeals held in Zumpano v Quinn, 6 NY3d 666, “equitable estoppel did not apply where the plaintiff had sufficient knowledge to bring a timely action.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04050.htm