Assigning law enforcement personnel to perform light duty while receiving benefits pursuant to §207-c of the General Municipal Law

Assigning law enforcement personnel to perform light duty while receiving benefits pursuant  to §207-c of the General Municipal Law

Barkor v City of Buffalo, 2017 NY Slip Op 02270, Appellate Division, Fourth Department

A City of Buffalo police officer [Petitioner] was receiving benefits pursuant to General Municipal Law §207-c as the result of his having suffered a disability in the line of duty. While receiving such benefits, Petitioner returned to work in a light-duty capacity.

Petitioner while at work in such light duty employment status reported that he "twisted his ankle exiting the restroom and allegedly exacerbated the prior injuries." In the course of the administrative hearing that followed, Petitioner presented evidence, in the words of the Appellate Division, "suggesting that he was not able to work at all." The Hearing Officer, however, credited other evidence and determined that Petitioner could perform light-duty assignments.

Petitioner challenged the Hearing Officer's determination by initiating an Article 78 action seeking a court order vacating the Hearing Officer's decision.

The Appellate Division said that it agreed with the employer that the Hearing Officer's determination that Petitioner could continue to perform the light duties assigned to him was supported by substantial evidence. The court explained that ""The Hearing Officer was entitled to weigh the parties' conflicting medical evidence" and "[a court] may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists."

As to Petitioner's claim that "he was not able to work at all," it should be noted that in the event an individual otherwise eligible for benefits pursuant to §207-c of the General Municipal Law is "permanently disabled," §207-c.2 of such law provides as follows:

2. Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his duties if such policeman is granted an accidental disability retirement allowance pursuant to section three hundred sixty-three of the retirement and social security law, a retirement for disability incurred in performance of duty allowance pursuant to section three hundred sixty-three-c of the retirement and social security law or similar accidental disability pension provided by the pension fund of which he is a member. If application for such retirement allowance or pension is not made by such policeman, application therefor [sic] may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02270.htm

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The Disability Benefits E-book:- This e-book focuses on disability 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://booklocker.com/3916.html

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An employee's resigning his or her position to continue his or her education deemed a voluntarily separation "without good cause"

An employee's resigning his or her position to continue his or her education deemed a voluntarily separation "without good cause"

Matter of Delgado-Agudio (Commissioner of Labor), 2017 NY Slip Op 03095, Appellate Division, Third Department

An applicant for unemployment insurance benefits [Claimant] worked full time as a social work assistant for approximately 2½ years. She enrolled in a graduate program while she was working and requested the employer to modify her work schedule to enable her to complete an internship that was part of the program. When the employer denied her request, she resigned from her position.

The Department of Labor issued an initial determination disqualifying Claimant from receiving unemployment insurance benefits on the ground that she voluntarily left her employment without good cause. The determination was sustained by a Department of Labor Administrative Law Judge [ALJ] following a hearing. Claimant appealed the ALJ's ruling and the Unemployment Insurance Appeal Board affirmed the ALJ's decision.

Claimant appealed the Board's ruling. The Appellate Division affirmed the administrative determination, explaining that "[r]esigning from a position in order to pursue educational opportunities constitutes a personal and noncompelling reason for leaving employment disqualifying a claimant from receiving unemployment insurance benefits."

As it was undisputed that Claimant resigned from her job because the employer declined to modify her work hours, the Appellate Division held that substantial evidence supported the Board's decision and that it found no reason to disturb it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03095.htm

An employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"

An employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"

Redfern-Wallace v Buffalo News, CWA Local 81, CA2nd Circuit, Docket #16-3007-cv

The Petitioner in this action claimed that she was the victim of race discrimination, retaliation, and a hostile work environment by her employer, the Buffalo News Co., in violation of Title VII of the Civil Rights Act of 1964 [42 U.S.C. §2000e]. She also contended that CWA Local 81 had breached its duty of fair representation with respect to her advancing her claims against Buffalo News.

Petitioner contended that she had been disciplined and terminated from her position by Buffalo News, while a co-worker, who was similarly situated in all material respects to her, was neither disciplined nor terminated.

Although Petitioner had admitted to Buffalo News that she had sent inappropriate text messages to the co-worker, she failed to provide any evidence to Buffalo News, or to the court in the course of the litigation, to corroborate her allegation that the co-worker had sent her inappropriate text messages in the same exchange.

The Circuit Court of Appeals said that Petitioner "thus failed to show that she and [the co-worker] were 'similarly situated in all material respects' because she did not demonstrate that they both 'engaged in' conduct of comparable seriousness.”

Petitioner had also claimed that the conduct that resulted in her dismissal from her position occurred outside of work and therefore did not violate any of Buffalo News’ rules or policies. The court disagreed, commenting that Buffalo News’ anti-harassment policy was not limited to conduct occurring at work but covered [employee] conduct outside of work that affected the workplace as well.*

Finally, Petitioner claimed "ineffective assistance of counsel." However, the Circuit Court dismissed this contention, explaining that such a claim "is not cognizable in a civil case," citing United States v. Coven, 662 F.2d 162.

* In Tessiero v Bennett, 50 A.D.3d 1368, the Appellate Division sustained the termination of an employee found guilty of off-duty misconduct that brought discredit upon the employer. 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/c2a7dadd-d6fc-4e58-a3d1-4991a70f33ce/10/doc/16-3007_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c2a7dadd-d6fc-4e58-a3d1-4991a70f33ce/10/hilite/

Assessing the appropriate penalty to be imposed for unprofessional and disrespectful language in the workplace

Assessing the appropriate penalty to be imposed on an employee found guilty unprofessional conduct and using disrespectful language at the workplace

OATH Index No. 0073/17

A New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] found that an Eligibility Specialist employed by the City's Human Resources Administration [HRAHHRA] inefficiently performed her duties by holding seven cases for 22 or more days and delaying the processing of a client’s application for months.

In addition, Judge Ingrid M. Addison found that the Eligibility Specialist violated multiple rules of HRA's Code of Conduct by being verbally abusive to co-workers at her workplace; failed to efficiently perform her duties; was insolent to, and refused to meet with, HRA's deputy director when directed to do so, was discourteous to a client in the presence of other clients and failed to follow a supervisor’s instructions.

Finding that HRA, however, failed to prove other Charges and Specifications of misconduct alleged in the notice of discipline served upon her.

Considering the record made at the Civil Service Law §75 disciplinary hearing, the ALJ recommended that the Eligibility Specialist be suspended from her employment without pay for 30 days, the penalty urged by HRA, commenting that "Even though [HRA] did not prove the five charges [preferred against the employee] in their entirety, I find [HRA's] request to be appropriate."

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17-73.pdf

Disciplinary hearing officer permitted to "draw the strongest inferences" from the record in the event the charged individual declines to testify at his or her disciplinary hearing

Disciplinary hearing officer permitted to "draw the strongest inferences" from the record in the event the charged individual declines to testify at his or her disciplinary hearing

Varriale v City of New York, 2017 NY Slip Op 02513, Appellate Division, First Department

The Appellate Division affirmed the decision to terminate a tenured New York City school teacher [Petitioner]. Noting that Petitioner showed no remorse nor appreciation for the seriousness of her conduct, the Appellate Division said that as Petitioner declined to testify at her administrative disciplinary hearing, "the hearing officer was permitted to draw the strongest inference against her permitted by the record."

The court said that the record indicated that Petitioner had "strayed from her duties as a school teacher by deliberately escalating a confrontation with a student by yelling expletives and threatening him with violence."

The Appellate Division's decision also noted that: "Even after security personnel defused the situation by removing the student from the classroom, Petitioner subsequently confronted him again, later that day, yelling at least six times that her husband, an armed police officer, would kill him. Petitioner then brought her husband to school the following morning to the student's scheduled class in the gymnasium although the student, having been suspended from school, was not there."

The court said that although Petitioner was a thirteen-year employee with no prior disciplinary history, and no charges had ever previously been filed against her, in light of the seriousness of the allegations made against her, the penalty of termination was not shocking to one's sense of fairness.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02513.htm

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