Employee terminated because of a pattern of aggressive and inappropriate workplace conduct

Employee terminated because of a pattern of aggressive and inappropriate workplace conduct

2015 NY Slip Op 05422, Appellate Division, First Department

The Administrative Law Judge [ALJ] sustained three charges of misconduct against the employee [Petitioner] and Petitioner was terminated from his employment. Petitioner initiated an action pursuant to CPLR Article 78 challenging the ALJ’s findings, which Supreme Court transferred to the Appellate Division as the decision to dismiss Petitioner was made following an administrative hearing.

The Appellate Division sustained the ALJ’s decision, finding that substantial evidence supports the determination that Petitioner committed the charged acts of misconduct. The record, said the court, shows that Petitioner engaged in a pattern of aggressive and inappropriate workplace conduct, and there exists no basis to disturb the credibility determinations made by the ALJ.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05422.htm

_____________

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on

http://booklocker.com/books/7401.html

_____________

Employer required to consider providing a reasonable accommodation after employee placed on workers’ compensation leave

Employer required to consider providing a reasonable accommodation after employee placed on workers’ compensation leave

2015 NY Slip Op 05147, Appellate Division, Second Department

An employee [Employee] was injured on the job and as a result of her injury she was unable to work and was placed on leave of absence without pay pursuant to Civil Service Law §71, Workers’ Compensation Leave.*

About a year after being placed on leave pursuant to §71, the appointing authority sent Employee “a notice of proposed termination” of her employment** pursuant to Civil Service Law §71. Employee challenged the proposed termination and sought reinstatement prior to the effective date of her termination.

The appointing authority [Agency] denied Employee’s request, without ordering a new independent medical examination, on the grounds that the Employee [1] had failed to demonstrate that she was medically fit to return to work and [2] had failed to provide the appointing authority with a date by which she would be able to return to full duty. Ultimately Employee was terminated.

In an action to recover damages for unlawful discrimination in employment on the basis of disability and retaliation in violation of Executive Law §296, Employee appealed so much of an order of the Supreme Court dismissing her first cause of action in which she had alleged discrimination in employment on the basis of disability.

The Appellate Division reversed the Supreme Court’s granting the Agency motion for summary judgment dismissing Employee’s first cause of action in which she alleged unlawful discrimination in employment on the basis of disability, holding that the motion should have been denied.

Civil Service Law §71, Workers’ Compensation Leave, provides that an individual injured on the job and unable to perform the duties of his or her position is entitle to at least one year of leave without pay unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

Employee commenced this action, contending that the Agency discriminated against her because of her disability by failing to provide a reasonable accommodation in the form of light duty or additional time for recovery.

In the words of the Appellate Division, "The employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested," explaining that:

1. An employer normally cannot obtain summary judgment on a disability discrimination claim pursuant to Executive Law §296 "unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation; and 

2. An employer cannot present such a record "if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request.

Viewing the evidence in the light most favorable to Employee, the Appellate Division found that the Employee’s responses to the notice of proposed termination could reasonably have been understood as a request for accommodation which Agency rejected by terminating the Employee’s employment based on her inability to return to work within the one year permitted under Civil Service Law § 71.

The Appellate Division concluded that Agency failed to establish, prima facie, that it had engaged in a good faith interactive process that assessed the needs of Employee and the reasonableness of her requested 

* §71 permits an employee to use any and all available leave credits until exhausted in order to remain on the payroll while on Workers’ Compensation Leave.

** §71 provides for the reinstatement of the employee after separation for disability if the individual applies for such reinstatement within one year of the termination of his or her disability [Duncan v NYS Developmental Center, 63 NY2d 128].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05147.htm

_____________

Disability Leave 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 providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

_____________

Courts do not have discretion to hear an untimely Article 75 action challenging an administrative determination

Courts do not have discretion to hear an untimely Article 75 action challenging an administrative determination

2015 NY Slip Op 05406, Appellate Division, First Department

Supreme Court denied a petition seeking to vacate an arbitration award upholding an administrative determination made after a hearing conducted pursuant to a collective bargaining agreement between the Employee's union and the employer terminating the employee from her position and confirmed the arbitration award, unanimously affirmed, without costs.

The Appellate Division held that Supreme Court properly held this special proceeding, commenced pursuant to CPLR Article 78, was in the nature of a CPLR article 75 proceeding challenging the award rendered by the arbitrator pursuant to the grievance procedures set forth in the collective bargaining agreement with Petitioner's union.

Accordingly, Supreme Court had properly dismissed the petition on the ground that it was untimely filed pursuant to the applicable 90-day statute of limitations set out in CPLR §7511[a]), based on Petitioner's admission that she received formal notice of the arbitration award on July 6, 2012.

The fact that Petitioner's pro sestatus in this action, said the Appellate Division, is not a basis to reach the merits of her claim.

An individual who is acting as his or her own attorney in a court action is said to be acting “pro se.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05406.htm

Appellate Division, Fourth Department, hold employer’s decision not to hire an individual because the individual was pregnant a form of unlawful discrimination

Appellate Division, Fourth Department, hold employer’s decision not to hire an individual because the individual was pregnant a form of unlawful discrimination

2015 NY Slip Op 05384, Appellate Division, Fourth Department

A part-time school guidance counselor [Counselor] alleged that the School District [District] had discriminated against her on the basis of "sex/pregnancy" when it declined to renew her employment contract shortly after learning that she was pregnant.

Counselor was employed as a part-time counselor for the District for the 2011-2012 school year and the District invited her to apply for a position for the following school year. Counselor did apply for continued employment with the District and also requested a "pregnancy/disability leave" from the end of August 2012 through January, 2013. Counselor said that she was then notified that she would not be hired because of her anticipated absence.

Counselor filed a complaint with the State Division of Human Rights [SDHR] alleging the District had unlawfully discriminated against her on the basis of "sex/pregnancy." SDHR found “no probable cause” and dismissed Counselor’s complaint without a hearing.

Counselor commenced a CPLR Article 78 proceeding seeking to annul SDHR finding that there was no probable cause to believe that the District had unlawfully discriminated against her. Supreme Court granted Counselor’s petition and remitted the matter to SDHR for a hearing. The Appellate Division affirmed the lower court’s ruling.

The court said that "Where, as here, a determination of no probable cause is rendered [by SDHR] without holding a public hearing pursuant to Executive Law §297(4)(a), the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis." However, explained the Appellate Division, “[t]he complainant's factual showing must be accepted as true on a probable cause determination.” Although the court’s “standard of review” is highly deferential to SDHR’s determination, in this instance the Appellate Division agreed with Supreme Court that SDHR’s determination "was not rationally based upon the evidence presented."

Executive Law §296 prohibits an employer from refusing to hire or employ an individual based on the individual's gender. Rejecting the District’s argument that it decided not to rehire Counselor because of her unavailability and its concern for continuity of counseling services for its students, the Appellate Division, noting that Counselor would be unavailable to work because of her pregnancy, said “we conclude that discrimination could be inferred from the record before us.”

The court observed that the District had relied on Roslyn Union Free Sch. Dist. v State Div. of Human Rights, 72 AD2d 808, in support of its argument that it did not unlawfully discriminate against Counselor. However, said the Appellate Division, “to the extent that Roslyn holds that a decision not to hire an individual because the individual is pregnant is not a form of discrimination,” it declined to follow it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05384.htm

Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees

Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees

Source: Federal, State and Local Government Newsletter [IRS]

Webinar to be held on July 30, 2015; 2 p.m. (Eastern)

Topics to be addressed:

Determining when accumulated sick and vacation pay are subject to federal employment taxes

Determining when taxation can be deferred to a later year

Defining an elective employee contribution

Defining a non-elective employer contribution

Click here to Register for this event.

NOTE: You will use the same link to attend the event.

If you have any questions or comments, click her to send us an e-mail.