The actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

The actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

2017 NY Slip Op 05145, Appellate Division, Third Department

An individual [Probationer]  serving with the  New York State Department of Corrections and Community Supervision was promoted to a higher grade position subject to his satisfactory completion of a 52-week probationary period. Shortly after Probationer had completed the minimum period of probation he was terminated from his probationary appointment and reinstated to his former, lower grade, position.

Probationer contending that the termination of his probationary period was made in bad faith as the appointing authority "waited to demote him to his former position until just after he completed the eighth week of his probationary period — the minimum probationary service period — to avoid having to establish under Civil Service Law §75 that the demotion was based on incompetence or misconduct," filed an Article 78 petition in Supreme Court seeking reinstatement to the higher grade position with back salary.

Supreme Court dismissed Probationer's petition and he appealed the court's ruling.

The Appellate Division affirmed the lower court's determination, explaining that "An employee's probationary appointment may be terminated without a hearing for any reason or no reason at all, so long as the termination was not "in bad faith or for an improper or impermissible reason."*

To warrant a hearing after completing his or her minimum period of probation, the employee bears the burden of raising a material issue of fact as to whether the termination was made in bad faith or for an impermissible reason; allegations of a conclusory or speculative nature are insufficient to meet this burden.

Here, said the Appellate Division, Probationer's submissions were insufficient to raise a material issue of fact as to whether his discharge from the higher grade position was made in bad faith or based on an improper or impermissible motive.

The court noted that in answering Probationer's petition, the appointing authority submitted, among other things, the affidavit of the Personnel Director "which established that the decision to terminate [Probationer's] probationary promotion was made in good faith." The affidavit of the Personnel Director cited an investigative report in which it was concluded that the most credible version of certain events that occurred prior to Probationer's promotion "pointed to [Probationer] having observed and/or participated in threatening [a] particular inmate and then denying such observation or participation."

In addition, "as found by Supreme Court," the Appellate Division said that Probationer's allegations of bad faith "were too conclusory and speculative to warrant a hearing on the matter" as there was no evidentiary support that the Director waited to demote him to his former position until just after he completed the minimum probationary period.

* "Probationary employees" typically hold permanent appointment in the position and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05145.htm

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As the Regulations of the Commissioner of Education's do not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination

As the Regulations of the Commissioner of Education's do not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination

Decisions of the Commissioner of Education, Decision No. 17,062

Susan Ford-Gambee Wilhelm filed a appeal with the Commissioner of Education challenging the action of the Board of Education of the Eden Central School District assigning her to teach five classes following a reduction in her position from a full-time position to a .83 full time equivalent [FTE] position. 

Wilhelm contended that she was a full-time teacher within the meaning of §100.2(i) of the Commissioner’s regulations "because she continued to teach five classes each day, which she contended is a 1.0 FTE." She claimed that Eden has improperly treated her position as a .83 FTE and compensated her on that basis, even though she contended that she was a full-time teacher.

The Commissioner said that the essence of Wilhelm's argument appeared to be that §100.2(i) defines a full-time teaching load as five classes and thus that she is entitled to compensation as a full-time teacher based on the classes she was assigned to teach by the school district.

§100.2(i), relating to teaching assignments, provides that, with respect to teaching staff in public schools, the number of daily periods of classroom instruction for a teacher should not exceed five. Further, said the Commissioner, pursuant to the regulation, "a school requiring of any teacher more than six teaching periods a day, or a daily teaching load of more than 150 pupils, should be able to justify the deviation from this policy."

The Commissioner said that a petitioner, here Wilhelm, has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.

Wilhelm, however, did not contend that her number of daily periods of classroom instruction exceeds five; admitted that she only taught five classes for the 2016-2017 school year; and did not claim that she was assigned a daily teaching load in excess of 150 students. Rather she argued that §100.2(i) defines a full-time teaching load as five classes and thus she was entitled to compensation as a full-time teacher. 

The Commissioner disagreed, explaining that §100.2(i) "merely establishes a policy that teachers should not be assigned more than five classes or a teaching load of 150 pupils and requires that a board of education be able to justify any such assignment, for the purpose of maintaining quality instruction for students." Further, said the Commissioner, the regulation does not define full-time status for purposes of compensation, noting that in Wilhelm's case, was governed by the applicable collective bargaining agreement.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17062

Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits

Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits
Matter of Telemaque (Commissioner of Labor), 2017 NY Slip Op 02109, Appellate Division, Third Department

Veronica Telemaque appealed the decision of the Unemployment Insurance Appeals Board that she was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Telemaque had been found guilty and dismissed from her position after a hearing on disciplinary charges filed against her pursuant to Education Law §3020-a for allegedly engaging in misconduct, conduct unbecoming and/or prejudicial, insubordination and violating the employer's rules.

The Appellate Division said that Telemaque's primary challenge concerns the disciplinary Hearing Officer's factual and credibility determinations and alleged evidentiary errors were made at the disciplinary hearing. The Board noted that it did not appear that Telemaqueappealed that disciplinary determination and "her challenges to the merits of that determination may not be raised in this unemployment insurance proceeding."

As Telemaque had "a full and fair opportunity to litigate the charges of misconduct at [her §3020-a disciplinary] hearing, the Appellate Division said that the Board had "properly gave collateral estoppel effect to the Hearing Officer's factual determinations" in that proceeding and sustained the Board's determination.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_02109.htm 

Determining if the parties agreed to resolve a particular grievance pursuant to the terms of the arbitration clause set out in a collective bargaining agreement

Determining if the parties agreed to resolve a particular grievance pursuant to the terms of the arbitration clause set out in a collective bargaining agreement

County of Monroe (Civil Serv. Employees Assn., Inc., Local 828, Unit 7423, 2017 NY Slip Op 04602, Appellate Division, 4th Department

Civil Service Employees Association, Inc., Local 828, Unit 7423 [7423] filed a grievance on behalf of certain retired former employees of the Monroe County Sheriff's Department, all of whom retired prior to January 1, 2000, when a collective bargaining agreement [CBA] that covered the period between 1994 through 1999 was in effect.

The grievance alleging that Monroe County had had violated the CBA by unilaterally changing the subject retirees' post-Medicare health insurance benefits.

Monroe County contended that any such alleged unilateral change was subject to resolution pursuant to the grievance and arbitration procedure set out in the 2009-2012 CBA. 7423, however, denied that the parties had agreed to resolve retiree health insurance benefit disputes for those retiring prior to January 1, 2000, by submitting it to the grievance and arbitration procedure set out in the 2009-2012 CBA.

When Monroe County demanded arbitration pursuant to the 2009-2012 CBA, 7423 commenced this proceeding, and the County cross-moved to compel arbitration. Supreme Court granted 7423's petition, permanently staying arbitration, and denied the County's cross motion to compel arbitration. Monroe County appealed but the Appellate Division sustained the Supreme Court's ruling.

Citing City of Buffalo v A.F.S.C.M.E. Council 35, Local 264, 107 AD2d 1049, the Appellate Division, agreeing with Supreme Court, concluded that the rights of the subject retirees are governed by the 1994-1999 CBA, which was in effect when they retired.

Then, in order to determine whether the grievance was arbitrable under the 1994-1999 CBA, the Appellate Division initiated "the requisite two-step inquiry." As to the first step of its inquiry - was there any statutory, constitutional or public policy prohibition against arbitration of the grievance -- the Appellate Division said " it is undisputed that there is no prohibition against arbitration of the grievance."

The court then considered the "second step" of the inquiry -  "... whether the parties did agree by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration."

Addressing this second element of the "two-step inquiry," the Appellate Division concluded that Supreme Court had properly determined that the parties did not agree to refer to arbitration retiree health benefit disputes raised by former employees who had retired prior to January 1, 2000.

The decision of the Appellate Division notes that that a "grievance clause in the 1994-1999 CBA" specifically excludes retirement benefits from the grievance and arbitration procedure. Accordingly, the court dismissed Monroe County's appeal, sustaining Supreme Court's order granting 7423's petition to stay arbitration and denying the County's cross-motion to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04602.htm

A police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"

A police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"

Oliver v D'Amico, 2017 NY Slip Op 04596, Appellate Division, Fourth Department

A former New York State Trooper, Jean Oliver, commenced a CPLR Article 78 proceeding seeking to annul Commissioner of State Police's determination finding her guilty of certain disciplinary charges or, in the alternative, to vacate the penalty of dismissal imposed upon her. Oliver contended that the Superintendent's determination was not supported by substantial evidence and that the penalty of dismissal is "shocking to one's sense of fairness."

Citing Wilson v City of White Plains, 95 NY2d 783, the Appellate Division sustained the Superintendent's determination, explaining that "It is well established that, '[i]n CPLR Article 78 proceedings to review decisions of administrative tribunals, the standard of review for the Appellate Divisions ... is whether there was substantial evidence to support the Hearing Officer's decision.'" The court found that, contrary to Oliver's contention, the Superintendent's determination was supported by substantial evidence.

Although Oliver also argued that the hearing panel had improperly expanded the charge in Charge number one by expanding the scope of the alleged order from an order to refrain from working on certain cases she had been assigned while at CNET to an order to refrain from working on relatedcases or being involved in "any matters related to her previous work, the Appellate Division rejected her contention, noting that Charge number one was "reasonably specific, in light of all the relevant circumstances, to apprise [Oliver] . . . of the charges against [her] . . . and to allow for the preparation of an adequate defense." Further, said the court, the evidence at the hearing established that "[Oliver's] guilt was based only on violations that were charged."*

As to the penalty imposed, dismissal, the court, quoting from Kelly, 96 NY2d at 38,  concluded that the penalty of termination is not shocking to one's sense of fairness noting that "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law . . . [T]he Appellate Division is subject to the same constraints as th[e] Court [of Appeals]—a penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law."

Of critical importance, said the Appellate Division, is the principal that "a State Trooper holds a position of great sensitivity and trust . . . and [a] higher standard of fitness and character pertains to police officers than to ordinary civil servants." Thus, given the conduct underlying the offenses -- directly disobeying an order and making false statements in an Internal Affairs interview and on official police records, and Oliver's refusal to accept any responsibility for her conduct. Accordingly, the court concluded that it could not say that the penalty of dismissal shocks its sense of fairness.

Finally, the court said it recognized that the allegations against Oliver did not involve any harm to the public, any misconduct for her personal gain or official corruption. It also noted that charges herein "were filed following petitioner's initial complaints of discrimination and that the Equal Employment Opportunity Commission has since found that "there is reasonable cause to believe that [the New York State Police] has discriminated against [petitioner] on account of her gender and in retaliation for engaging in a protected activity."

However, said the Appellate Division, its review of the penalty is extremely limited and it does not have any "discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed."

* Oliver also argued that the hearing panel failed to consider the retaliatory motive of the disciplinary charges in violation of Civil Service Law §75-b, the so-called "whistle blower statute." The Appellate Division said that she failed to raise that contention in her petition and thus that contention was "not properly" before it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04596.htm

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