Seniority for the purposes of layoff and reinstatement from a preferred list set out in "settlement agreement"

Seniority for the purposes of layoff and reinstatement from a preferred list set out in "settlement agreement"

Giardina v New York City Health and Hosp. Corp., 2016 NY Slip Op 01402, Appellate Division, First Department

City Laborer Antonio Giardina was laid off from his position. Giardina’s union subsequently challenged the way the “retention date” of City Laborers, including Giardina’s, for the purposes of layoff had been determined by the employer. The union, on behalf of affected City Laborers, including Giardina, then entered into a stipulation of settlement with the employer that set the “retention date” for the Labors.

Giardina filed an Article 78 petition seeking to annul the determination that resulted in his being laid off after his position had been abolished. Supreme Court dismissing the proceeding brought by Giardina, which ruling the Appellate Division unanimously affirmed.

Noting that Giardina had personally ratified the settlement which advanced his retention date by more than nine years and moved his name from No. 49 to No. 23 on the preferred list, the Appellate Division explained that only two vacancies had occurred since his layoff and  Laborers senior to him had been reinstated to those position. As Giardina was unable to identify any Laborer who should have been displaced by him or any vacancy that occurred to which he should have been appointed from the preferred list, the court held that Supreme Court was correct in dismissing his petition.

Significantly, the positions to which the stipulation of settlement applied apparently were in the Labor Class.* 

As the Appellate Division held in City of Plattsburgh v Local 788, 108 AD2d 1045, this element – an individual’s seniority for the purposes of layoff – may neither be diminished or nor impaired by the terms of collective bargaining agreement with respect to incumbents of positions in the Competitive Class.

In Plattsburgh the issue concerned the application of a contract provision negotiated pursuant to the Taylor Law to determine seniority in a layoff situation.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date required to be used to determine an individual's service for seniority purposes in layoff situation under State law, typically the individual's date of initial permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was provisionally appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1. Under the terms of the Local 788 collective bargaining agreement Employee A would have greater seniority for layoff purposes than Employee B. §80 of the Civil Service Law, however, provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the Civil Service Law, Employee B would have greater seniority than Employee A.

This was the problem in the Plattsburgh case. The City laid off M rather than another worker, R. Although M had been employed by the City for a longer period than R, R had received his permanent appointment before M was permanently appointed.

Ultimately the Union demanded that the matter be submitted to arbitration, contending that under the seniority provision in the collective bargaining agreement, R should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus M, rather than R, had to be laid off first and sought to stay the arbitration of the grievance.

Plattsburgh obtained a court order prohibiting arbitration. The court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

As the Court of Appeals held in County of Chautauqua v. Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, §80(1) obligates the employer to respect the seniority rights of its employees."

* §80 of the Civil Service Law controls with respect to the suspension or demotion of employees in the Competitive Class in the event of a layoff while §80-a of the Civil Service Law controls with respect to the suspension or demotion of employees of State as the employer serving in positions in the Non-competitive Class in the event of a layoff. §81 sets out the procedures to be followed with respect to reinstatement from preferred lists established pursuant to §§80 and 80-a.

The Giardina is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01402.htm

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A party seeking to modify an arbitration award must comply with the relevant provisions of Article 75 of the Civil Practice Law and Rules

A party seeking to modify an arbitration award must comply with the relevant provisions of Article 75 of the Civil Practice Law and Rules

Board of Educ. of the City Sch, Dist. of the City of New York (DOE) v United Fedn. of Teachers, 2016 NY Slip Op 01592, Appellate Division, First Department

Supreme Court vacated a supplemental arbitration award; the Appellate Division unanimously affirmed the lower court’s ruling. The Appellate Division said the Supreme Court had “properly vacated the supplemental arbitration award because the parties failed to comply with the procedure set forth in CPLR 7509.”

§7509 permits a modification of an arbitration award by arbitrator[s] and requires that the party seeking the modification to apply for it within 20 days of the delivery of the award by submitting a written application to the arbitrator.* A copy of the application must be served on the other parties to the arbitration.

In the event there is any objection to the modification requested, the objecting party or parties must served the objection on the  arbitrator[s]  and  other parties to the arbitration within ten days of receiving the request for the modification.

Addressing another issue, the Appellate Division found that the arbitrator had exceeded his powers by "rendering wholly new determinations on matters not addressed in the original award."

* In addition a party involved in the arbitration may ask a court to modify an arbitration award as permitted by §7511(c) of the CPLR.

The decision is posted on the Internet at:

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http://www.nycourts.gov/reporter/3dseries/2016/2016_01592.htm

The essentials elements of processing a complaint alleging retaliation constituting unlawful discrimination

The essentials elements in processing a complaint alleging retaliation constituting unlawful discrimination

Troge v State Div. of Human Rights, 2016 NY Slip Op 01337, Appellate Division, Second Department

In the Troge decision the Appellate Division sets out the basics with respect to litigating a complaint alleging retaliation in violation of the State's Human Rights Law where the individual suffered an adverse personnel action because of the individual's engaging in a protected activity .

First, in order to establish a prima facie case of retaliation, the individual is required to show that:

(1) he or she had engaged in protected activity, 

(2) his or her employer was aware that he or she participated in such activity, 

(3) he or she suffered an adverse employment action based upon his or her activity, and 

(4) there is "a causal connection between the protected activity and the adverse [personnel] action" alleged to have suffered by the individual.

Assuming the individual is able to make this initial showing, the burden would shift to the Employer to present legitimate, independent, and nondiscriminatory reasons to support its action[s] or decision[s].

If the Employer meet that burden, the individual would then have to show that the reasons given by the Employer in its defense were "pretext" to camouflage an act of unlawful discrimination.

Darlene Troge was employed by the Town of Southampton as Director of Workplace Policy and Compliance [DWPC], a position that required her to investigate complaints of job discrimination and harassment. After a Deputy Town Supervisor demanded that Troge produce her notes of an investigation of a workplace dispute between two employees, one of whom was Troge’s supervisor, she filed an internal complaint with the Town alleging that the Deputy Town Supervisor had created an "offensive" work environment.

The Town investigated Troge’s complaint and dismissed it. A month later the DWPC position was abolished by unanimous vote of the Town Board and Troge was terminated.  Contending that she had been terminated in retaliation for her filing her “internal complaint” alleging "an offensive work environment," Troge filed a complaint pursuant to Executive Law Article 15 against the Town and Town Supervisor Anna Throne-Holst [the Town].

At a hearing before the State Division of Human Rights [SDHR] the Town submitted proof of the Town's need to reorganize and consolidate different departments within the Town government for financial reasons, leading to the termination of employees. In addition, the Town offered proof of their discontent with the petitioner's job performance. Troge testified that she filed the internal complaint after “opposing requests that she perceived to be in furtherance of discrimination directed against her supervisor” and that she was fired in retaliation of that action.

A Division of Human Rights Administrative law judge [ALJ], following the hearing, found that

[1] Troge failed to establish a prima facie claim for retaliation, and

[2] Even if Troge had established a prima facie claim of unlawful discrimination, the Town had shown that its actions were motivated by "fiscal, non-discriminatory reasons."

Troge filed objections to the ALJ’s findings and determination. The SDHR’s Commissioner issued a final order adopting the ALJ's findings and recommendations and dismissed Troge’s complaint. Troge then filed a CPLR Article 78 petition challenged the Commissioner’s determination.

The Appellate Division said that the review of an administrative determination made after a hearing by a court is limited to considering whether the administrative determination was supported by substantial evidence. Substantial evidence, said the court is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

Notwithstanding Troge’s contention to the contrary, the Appellate Division ruled that there was substantial evidence to support the Commissioner’s determination that the Troge was not subjected to retaliation, explaining that she failed to establish that she had been subjected to an adverse employment action that was taken because of her having engaged in a protected activity.

Essentially the court found that Troge had not been able to demonstrate that the abolishment of her position by the Town constituted a retaliatory firing and the reasons given by the Town in support of its action was “subterfuge.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01337.htm

Employee has the burden of proving alleged misconduct by the arbitrator prejudiced his or her rights or the integrity of the process

Employee has the burden of proving alleged misconduct by the arbitrator prejudiced his or her rights or the integrity of the process

Collazo v Suffolk County, 2016 NY Slip Op 01321, Appellate Division, Second Department

Maria Callazo initiated an Article 75 CPLR proceeding in Supreme Court seeking to vacate an arbitration award that recommended certain disciplinary action be taken against her with respect to her employment with the County. The Appellate Division affirmed Supreme Court’s dismissal of Callazo’s petition.

Contrary to the Callazo's contention, the Appellate Division said that Supreme Court correctly determined that Callazo “failed to show by clear and convincing evidence that any misconduct on the part of the arbitrator prejudiced her rights or the integrity of the arbitration process.” In addition, the Appellate Division noted that the disciplinary charges filed against her were timely served within 18 months of her alleged misconduct in connection with her employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01321.htm

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Resolving conflicting medical evidence submitted connection with a Workers’ Compensation Law claim is within the exclusive province of the Workers’ Compensation Board

Resolving conflicting medical evidence submitted in connection with a Workers’ Compensation Law claim is within the exclusive province of the Workers’ Compensation Board

Granville v Town of Hamburg; 2016 NY Slip Op 01373, Appellate Division, Third Department

The Town of Hamburg had employed Patrick Granville as a laborer and light equipment operator from 2003 to 2012. In May 2013, Granville filed for workers' compensation benefits claiming that he had sustained an occupational hearing loss due to exposure to loud occupational noise as a result of his operating such equipment such as heavy-duty sit-down lawn mowers, weed whackers, heavy-equipment tractors, backhoes, zambonis and air jacks.

The Town, a self-insured employer for the purposes of Workers’ Compensation, and its third-party administrator [collectively “the Town”] controverted the claim for benefits filed by Granville. The Workers' Compensation Law Judge [WCLJ] who conducted the hearing concluded that Granville had suffered a causally-related binaural loss of hearing. The Workers' Compensation Board affirmed the WCLJ’s findings.

The Town, conceding that Granville had suffered a hearing loss, appealed the Board’s decision, contending that the record as a whole:

[1] did not establish that Granville was exposed to injurious noise during the course of his employment by the Town; and 

[2] did not establish that Granville’s hearing loss was causally related to his employment.

The Appellate Division rejected the Town’s argument, explaining that Granville had satisfied his burden of establishing, by competent medical evidence, that a causal connection existed between his hearing loss and his employment.

At the workers’ compensation hearing Granville had testified that he had operated heavy and light machinery "at least ninety percent of the time" during a typical workweek, that he had no loud hobbies or activities outside of work and that, prior to his work with the employer, he had worked in the banking industry. He also testified that he was required to undergo a hearing test in 2004, shortly after commencing employment with the Town, and that the results of this test revealed that he had "no effects of hearing loss.* In addition, Granville submitted a report and medical opinion of his treating otolaryngologist, Dr. Sayeed Nabi, who found that Granville's hearing loss was causally related to his employment.**

In contrast, the otolaryngologist who examined Granville on behalf of the Town opined that Granville's hearing loss was neither consistent with injurious noise exposure nor causally related to his employment’

Sustaining the Board’s decision in favor of Granville, the Appellate Division said “The Board found the opinion of [Dr.] Nabi to be more credible and, according appropriate deference to that assessment, substantial evidence supports the determination that [Granville] suffered a causally-related binaural loss of hearing,” explaining that the resolution of conflicting medical opinions, particularly with regard to the issue of causation, is within the exclusive province of the Workers’ Compensation Board.

* The Appellate Division noted that the Town “failed to produce the records of this hearing test.”

** The court said that "[W]here medical proof is relied upon to demonstrate the existence of a causal relationship, it must signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility"

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01373.htm

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