A hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses where room for choice exists

A hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses where room for choice exists

Tamsen v Village of Kenmore, 2016 NY Slip Op 00785, Appellate Division, Fourth Department

The Appellate Division rejected Jeffrey Tamsen’s challenge to his being terminated from his position as a firefighter after the Hearing Officer found him guilty of the disciplinary charges filed against him.

Concluding that the Hearing Officer’s determination was supported by substantial evidence, i.e, “… relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact," the court rejected Tamsen’s claim that the Hearing Officer erred in determining that he misrepresented certain facts in the course of the disciplinary hearing.

Conceding that Tamsen presented “evidence to the contrary,” the court explained that a hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses and courts may not weigh the evidence or reject a hearing officer’s decision in that regard “where the evidence is conflicting and room for a choice exists.”

Citing Kelly v Safir, 96 NY2d 32, rearg denied 96 NY2d 854, the Appellate Division concluded that the penalty imposed, termination, was not "so disproportionate to the offense[s] as to be shocking to one's sense of fairness" and thus did not constitute an abuse of discretion and dismissed Tamsen’s appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00785.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

 

The term “race” for purposes of 42 U.S.C. 1981 is to be defined the same as the term “race” is defined for the purposes of Title VII

The term “race” for purposes of 42 U.S.C. 1981 is to be defined the same as the term “race” is defined for the purposes of Title VII

Village of Freeport v Barrella. USCA 2^nd Circuit, Docket 14-2270

A disappointed candidate for appointment to the position Chief of Police sued the Village of Freeport for alleged unlawful discrimination.

The individual, a “white Italian-American.” alleged that a “less-qualified Hispanic candidate” was appointed to the position in violation of 42 USC 1983 because he scored highest on the examination and of the three names on the list certified for the appointment, the Hispanic candidate was ranked "third."* The Village argued that an employer who promotes a “white Hispanic” candidate over a “white non-Hispanic” candidate cannot have engaged in unlawful discrimination based on race.

The Second Circuit reject the Village’s argument, explaining that the term “race” includes ethnicity for the purposes of 42 USC 1983 and race should be defined in the same manner as “race” is defined for the purposes of Title VII. In so doing the court said “The Parties and the District Court experienced some confusion in unraveling the legal definitions of “race” and “Hispanic,” thanks partly to  the federal government’s less-than-straightforward use of those terms,” citing McCleskey v Kemp, 481 US 279.

The court also noted that even to the extent that one eligible was more qualified than another eligible for appointment, federal anti-discrimination law “does not require that the candidate whom a court considers most qualified for a particular position be awarded that position; it requires only that the decision among candidates not be discriminatory.” Further, said the Circuit Court, “an employer’s stated desire for diversity in the workplace does not, without more, establish a discriminatory intent with respect to any particular employment decision.”

* It appears that the appointment was otherwise consistent with the so-called "rule of three" set out in §61 of the Civil Service Law.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/9b9a5a4b-3821-4207-85d5-52e87d144e8e/1/doc/14-2270_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/9b9a5a4b-3821-4207-85d5-52e87d144e8e/1/hilite/

Commissioner of Education has primary jurisdiction to consider allegations that a school district failed to implement adequate policies and procedures

Commissioner of Education has primary jurisdiction to consider allegations that a school district failed to implement adequate policies and procedures

SC v Monroe Woodbury Cent. Sch. Dist., 2016 NY Slip Op 00669, Appellate Division, Second Department  

In this action to recover damages for negligence, SC alleged that the Monroe-Woodbury Central School District failed to adopt and implement adequate policies and procedures to prevent bullying and harassment.

The Appellate Division sustained Supreme Court dismissal of the action, explaining the matter “should be addressed, in the first instance, to the Commissioner of Education.”  

Contrary to SC’s contention, Supreme Court correctly determined that SC failed to exhaust available administrative remedies before commencing its action. Further, said the Appellate Division, SC also failed to establish the applicability of any exception to the exhaustion of administrative remedies doctrine.

One exception to the exhaustion doctrine: futility. For example, as a general rule, an employee covered by a collective bargaining agreement that provides for a grievance procedure must exhaust the administrative remedies available prior to seeking judicial remedies. However where the individual can prove that the union breached its duty of fair representation in the handling of the employee's grievance he or she would be excused from exhausting his or her administrative remedy. 

In Civil Service Bar Assn., Local 237, Intl. Bhd. of Teamsters v City of New York, 64 NY2d 188, the court opined that a union’s breach of its duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or its decision was made in bad faith.

In Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, the court held that "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation.” As the Appellate Division explained in Matter of Hoffman [Board of Education of the City of New York], 84 AD2d 840, a Union is not required to seek arbitration after having processed the employee's grievance through the initial stages of the grievance procedure and received unfavorable results.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00669.htm

Selected Reports issued by the Office of the State Comptroller during the week ending February 20, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending February 20, 2016

Click on text highlighted in color to access the full report

Office of Temporary and Disability Assistance failed to adequately monitor shelters

A state agency’s failure to adequately monitor and inspect homeless shelters allowed violations and squalid living conditions to go unchecked, according to an audit released by New York State Comptroller Thomas P. DiNapoli. The audit found fire and safety hazards, rodent and vermin infestations, and mold conditions at shelters under the oversight of the state’s Office of Temporary and Disability Assistance (OTDA). DiNapoli commended the agency for agreeing to strengthen its inspections and monitoring of shelters. DiNapoli’s audit covered the period from April 1, 2013 to Aug. 5, 2015.

http://www.osc.state.ny.us/press/releases/feb16/021616.htm?utm_source=weeklynews20160221&utm_medium=email&utm_campaign=021616release

City of Troy Audit  - Financial Condition
The City of Troy’s financial condition deteriorated because of poor budgeting, the overuse of rainy day funds to finance day-to-day operations and insufficient funding for capital costs, according to an audit released by State Comptroller Thomas P. DiNapoli. DiNapoli applauded the city’s new mayor for agreeing to take immediate steps to remedy the multitude of problems identified in the audit.

http://www.osc.state.ny.us/localgov/audits/cities/2016/troy.pdf?utm_source=weeklynews20160221&utm_medium=email&utm_campaign=021716release

Municipal Audits issued

Albany Public Library – Leave accruals

Cambria Housing Authority – Financial Management

Oneida County Department of Social Services – Contract Management and Payments

School Audits issued

Arlington Central School District – Cooperative Services Computer Inventory

Brocton Central School District - Purchases

Mineola Union Free School District – Competitive Quotations

Penn Yan Central School District – Separation Payments

Social Security Administration’s disability determination not binding on a public retirement system of this State.

Social Security Administration’s disability determination not binding on a public retirement system of this State.

Fusco v Teachers' Retirement Sys. of the City of New York, 2016 NY Slip Op 00782, Appellate Division, First Department

Kimberly Fusco appealed the New York City Teachers’ Retirement System’s [System] denial of her application for accidental disability retirement benefits.., unanimously affirmed, without costs.

The Appellate Division sustained the System’s determination indicating that some creditable evidence supported its finding that:

1. Fusco was not disabled by back pain or leg pain allegedly resulting from a fall while she walked up the steps at school, while at work.

2. Fusco failed to show that any disability was the result of an accident as there a lack of evidence that her fall was caused by anything other than her own misstep while ascending the stairs to the school.

In addition, the court held that the Social Security Administration’s finding that Fusco was disabled, rendered after the System’s determination, “is not dispositive of the Medical Board's disability determination.” 

This is consistent with previous court decisions holding that an employer's Section 207-a or Section 207-c decisions are not binding on PFRS; PFRS' disability rulings are not binding on the employer's Section 207-a or Section 207-c rulings and that the Workers' Compensation Board's decisions are not binding on PFRS or vice versa. See, for example, Cook v City of Utica, 88 NY2d 833 and Bett v City of Lackawanna et al.,76 NY2d 900.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00782.htm

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The Disability Benefits E-book: - This 810 page e-book focuses on disability leaves and benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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