Employee challenging an unsatisfactory performance rating has the burden of showing that the rating was arbitrary, capricious, made in bad faith, or issued in violation of lawful procedure

Employee challenging an unsatisfactory performance rating has the burden of showing that the rating was arbitrary, capricious, made in bad faith, or issued in violation of lawful procedure

Vyas v City of New York, 2015 NY Slip Op 08360, Appellate Division, First Department

Nayana Vyas, a probationary teacher employed by New York City Department of Education [DOE], filed an Article 78 petition seeking the annulment of DOE’s denial of her appeals of her unsatisfactory ratings [U-ratings] for the 2009-2010 and 2010-2011 school years. In lieu of answering Vyas' petition, DOE made a cross motion, to dismis her petition for failure to state a cause of action. Supreme Court granted DOE motion and Vyas appealed.

With respect to the 2009-2010 U-rating, the court said here the Vyas’ primary complaint was that her evaluation based on assignments to teach science classes, which were outside her area of certification (mathematics). Citing 8 NYCRR §30-1.9[c], the Appellate Division said that DOE was permitted to assign Vyas to teach science classes notwithstanding that her certification was in mathematics, explaining that “Rules of the Board of Regents that prohibits assigning a teacher ‘to devote a substantial portion of [her] time in a tenure area other than that in which [she] has acquired tenure or is in probationary status, without [her] prior written consent’ [is not] applicable to city school districts located within cities having a population in excess of 400,000 inhabitants" such as DOE.

Accordingly, the Appellate Division ruled that DOE was entitled to make the teaching assignment challenged by Vyas and DOE’s evaluation of Vyas based on her performance in that assignment “does not give rise to an inference that the resulting U-ratings were arbitrary, capricious, or made in bad faith, nor were the U-ratings issued in violation of lawful procedure.”

In addition, the court noted that because Vyas was a probationary teacher she could have been discharged at any time, for any lawful reason or no reason at all and “bad faith cannot be inferred from the fact that the U-rating was issued after the school principal insisted that [Vyas] sign an agreement consenting to an additional year of probation to avoid being discharged.”

Turning to Vyas’ challenge to her U-rating for the 2010-2011 school year, the Appellate Division said Vyas contended that it was given in retaliation for her having filed a complaint with the State Department of Education against the principal who issued her U-rating for the previous year, when she was teaching at a different school.” 

However, the court decided that this allegation failed to state a cause of action for annulment of the rating because Vyas’ “imputation of a retaliatory motive for the U-rating is entirely speculative” and the specific facts alleged do not give rise to a fair inference that the U-rating was improperly motivated.

Further, said the Appellate Division, Vyas admitted that she was assigned to teach within her area of certification during the 2010-2011 school year and she did not make any allegation of “procedural irregularities that might have undermined the integrity or fairness of the rating process for that year.”

Finding that Vyas had not pleaded any specific facts giving rise to a fair inference that the U-ratings were arbitrary, capricious, made in bad faith, or issued in violation of lawful procedure, the Appellate Division held that Supreme Court properly granted the cross motion and dismissed the petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08360.htm

Follow-up - OGS successfully auctioned two seized luxury cars

Follow-up - OGS successfully auctioned two seized luxury cars

Source: Office of General Services

On November 27, 2015 NYPPL posted an item captioned “Another ‘Black Friday’ opportunity – New York State to auction two seized luxury cars at December 1, 2015 vehicle and equipment auction in Albany.”

The Office of General Services reports that both luxury cars were successfully auctioned on Tuesday, December 1, 2015.

The high bid for the Audi was $40,000, and the high bid for the Mercedes-Benz was $113,000.

The initial item is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2015/11/another-black-friday-opportunity-new.html

Terminating an employee while he or she is on Workers’ Compensation Leave pursuant to Civil Service Law §71

Terminating an employee while he or she is on Workers’ Compensation Leave pursuant to Civil Service Law §71

Still v City of Middletown, 2015 NY Slip Op 08741, Appellate Division, Second Department

After Terri Still had been absent from her position on Workers’ Compensation Law pursuant to §71 of the Civil Service Law for one than one year,* her employer, the City of Middletown, advised her that she would be terminated from her position.**

Prior to the effective date of Still’s termination, however, the City scheduled a meeting with Still and gave her an opportunity to present any evidence as to why the City should not proceed with the termination of her employment. Still failed to show that she was medically fit to return to work, with or without a reasonable accommodation, and she was terminated.

Still then initiated an Article 78 action challenging her termination. Supreme Court, Orange County, denied her petition, in effect dismissed the proceeding, and Still appealed the court’s ruling.

The Appellate Division sustained the Supreme Court’s determination, explaining that the standard of judicial review in this instance was whether the appointing authority’s action was arbitrary and capricious, an abuse of discretion, in violation of lawful procedure, or affected by an error of law.  

Under the circumstances, said the court, "the City's decision to terminate [Still’s] employment was not arbitrary or capricious, an abuse of discretion, in violation of lawful procedure, or affected by an error of law."

N. B. An individual unable to perform the duties of his or her position due to an injury or disease that is not “job related” and which did not result in a permanent disability is entitled to be placed on leave without pay pursuant to §72 of the Civil Service Law -- Leave  for  Ordinary  Disability -- for at least one year. Such an individual may be  terminated from his or her position pursuant to §73 of the Civil Service Law after one year of such leave at the discretion of the appointing authority.

* An employee sustaining a disability resulting from an assault suffered in the course of his or her employment is entitled to a leave of absence for at least two years 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.

** Termination from Workers’ Compensation Leave pursuant to CSL §71 is not pejorative in nature and the individual may, within one year after the termination of his or her disability, file an application with the civil service department or municipal commission having jurisdiction for reinstatement to his or her former position and is to be reinstated if then found qualified to resume the duties of his or her former position. If the position, or a similar position, is not available, the name of the individual is to be placed on a preferred list in accordance with §80 or §80-A of the Civil Service Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08741.htm

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Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law §§207-a/207-c and other laws, rules, regulations and court decisions addressing disability and similar leaves absence. For more information click on http://booklocker.com/3916.html

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Teacher seeking unemployment insurance benefits between school years found ineligible to receive benefits because she had a reasonable assurance of continued employment

Teacher seeking unemployment insurance benefits between school years found ineligible to receive benefits because she had a reasonable assurance of continued employment
Matter of Vazquez (Commissioner of Labor), 2015 NY Slip Op 08234, Appellate Division, Third Department

Ana M. Vazquez worked as a substitute teacher for the New York City Department of Education (DOE) during the 2013-2014 academic school year. Prior to the close of the academic school year DOE notified Vazquez, in writing, that it anticipated the same need for substitute teachers going forward into the 2014-2015 academic school year and that the terms and conditions of her employment would remain substantially the same.

Vazquez, after confirming that she received this letter, applied for unemployment insurance benefits. The Department of Labor found that she was ineligible to receive such benefits because she had received a reasonable assurance of continued employment during the 2014-2015 academic year. This determination of ineligibility was sustained by an Administrative Law Judge [ALJ]  following a hearing and later by the Unemployment Insurance Appeal Board. Vazquez appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling, noting that Labor Law §590(10), bars professionals who are employed by educational institutions from receiving unemployment insurance benefits during the period between two successive academic periods if they have received a reasonable assurance of continued employment*.

The court said that in the course of the administrative hearing before the ALJ DOE’s representative stated that Vazquez had worked 169 out of a total of 180 days during the 2013-2014 academic school year at a rate of $154.97 per day and indicated that Vazquez’s per diem rate would be $158.09 during the 2014-2015 academic school year. DOE’s representative also indicated that he anticipated that Vazquez would receive the same amount of work during the 2014-2015 academic school year because the DOE was not under any budgetary constraints.

The Appellate Division concluded that DOE correspondence to Vazquez advising her of the continued need for substitute teachers during the 2014-2015 academic year on substantially the same economic terms and conditions that were offered the year before constituted “substantial evidence” supporting the Board's conclusion that Vazquez had received a reasonable assurance of continued employment and was, therefore, ineligible to receive unemployment insurance benefits between the two school years.

* "A reasonable assurance of continued employment" has been interpreted to have been satisfied by  a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant would receive at least 90% of the earnings received during the first academic period during the second academic year.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08234.htm

Navigating the Digital Age, The Definitive Cybersecurity Guide for Directors and Officers

Navigating the Digital Age, The Definitive Cybersecurity Guide for Directors and Officers
A publication of Palo Alto Networks, Inc. and the New York Stock Exchange

Palo Alto Networks Inc. CEO Mark McLaughlin, noting that “Frequent headlines announcing the latest cyber breach of a major company, government agency, or organization are the norm today, begging the questions of why and will it ever end?”, asks "Prevention: Can it be done?"

In 46 essays by experts in the field, this 355 page handbook covers many of the security issues facing the public and private sectors and provides “practical, actionable and expert advice on best practices for compliance, implementation, breach prevention and immediate response tactics.”

Palo Alto Networks, Inc. has made this publication available without charge through its website. To download a copy, go to:

http://connect.paloaltonetworks.com/cyberhandbook