An appointing authority's request for "any and all medical records relating to an employee's current state of health" may be too broad and not reasonably tailored to the scope of the relevant medical records

An appointing authority's request for "any and all medical records relating to an employee's current state of health" may be too broad and not reasonably tailored to the scope of the relevant medical records

2017 NY Slip Op 07129, Appellate Division, Second Department

This CPLR Article 78 was filed by an individual [Petitioner] seeking judicial review a determination by the appointing authority, a school district, that Petitioner was guilty of charges of insubordination and incompetence following a Civil Service Law §75 disciplinary hearing and that the appropriate penalty was termination.

The Appellate Division annulled the appointing authority's finding Petitioner guilty of insubordination and vacated the penalty imposed by the appointing authority. The matter was matter was remitted to the appointing authority for new consideration of the matter and the imposition of appropriate penalty, if any, under the circumstances.

The appointing authority had been advised that Petitioner had been admitted to a psychiatric facility after making threats of violence against his former spouse to his psychiatrist. Pursuant to Education Law §913, the appointing authority referred Petitioner to a psychiatrist for a medical examination to determine his mental capacity to continue working as a custodian and directed  Petitioner to provide the psychiatrist with "any and all medical records relating to [his] current state of health."

Petitioner attended the medical examination but did not bring any medical records, contending that production of such records was an invasion of his privacy. This failure resulted in Petitioner by charged with insubordination and incompetence.

The Appellate Division addressed a number of issues, finding:

1. A hearing pursuant to Civil Service Law §75 was the proper means to adjudicate the charge of incompetence in consideration of the fact that the appointing authority's  examining psychiatrist opined that Petitioner presented a potential danger to the students and fellow staff members and was thereby unfit to continue working at the elementary school.

2.  The appointing authority's determination to sustain the charge of insubordination based on Petitioner's failure to provide the requested medical records was not supported by substantial evidence.

The Appellate Division said that there was no evidence the Petitioner failed to attend the medical examination to which he was directed and submit to the medical examination. Neither, said the court, was that any evidence that Petitioner was requested to submit to any additional medical examination by the same or another psychiatrist.

As Education Law §913 does not mandate that medical records be produced as a requirement of submitting to a medical examination, the Appellate Division held that "under the circumstances of this case, the [appointing authority's] determination that Petitioner's failure to provide requested medical records constituted a failure to submit to the medical examination is not supported by substantial evidence."

Further, the court opined that "the appointing authority's request for 'any and all medical records relating to [Petitioner's] current state of health' was overly broad and not reasonably tailored in scope in that it sought medical records beyond those that were relevant to [Petitioner's] mental capacity to perform his duties."

Noting that the request for medical records "lacked any time or subject matter limitation," the Appellate Division concluded that the appointing authority "was in error "to the extent that it found that Petitioner was insubordinate "for his failure to comply with this unreasonable directive."

Finding that the penalty of termination of Petitioner's employment was based on the Board's adoption of the hearing officer's recommendation to sustain both the charge of insubordination as well as the charge of incompetence, the court said that the matter must be remitted to the appointing authority to give it the opportunity to consider the appropriate penalty to be imposed upon [Petitioner] in connection with the charge of incompetence, and the imposition of that penalty thereafter."

Editor's Note:

In situations such as the one confronting Petitioner, a number of disciplinary hearing officers have suggested that the employer consider that the is employee is incompetent within the meaning of §72 of the Civil Service Law, Leave for Ordinary Disability, rather than be deemed incompetent within the meaning of §75 of the Civil Service Law for the purpose of initiating disciplinary action.

Indeed, in Gooshaw v Village of Massena, 216 AD2d 819, the Appellate Division said that it is inappropriate to file disciplinary charges against an individual who is unable to report for work because of his or her conceded disability while in Penebre v Dzaluk, 51 AD2d 574, the Appellate Division ruled that §75 charges for misconduct should not have been served on the employee but that the employer should have proceeded under §72, Ordinary Disability Leave, instead.

The decision is posted on the Internet at:.

http://www.nycourts.gov/reporter/3dseries/2017/2017_07129.htm

A decision issued pursuant to a compulsory arbitration proceeding must have evidentiary support, cannot be arbitrary and capricious and meet the requirements of administrative due process

A decision issued pursuant to a compulsory arbitration proceeding must have evidentiary support, cannot be arbitrary and capricious and meet the requirements of administrative due process

Mazzella v Bedford Cent. Sch. Dist., 2017 NY Slip Op 07127, Appellate Division, Second Department

An Education Law §3020-a hearing officer sustained sustained five of the seven specifications supporting the charge of incompetence that Bedford Central School District [Employer] had alleged in disciplinary the charge it had filed against Ava Mazzella [Petitioner]. The penalty imposed by the hearing officer: termination of Petitioner from her position.*

Petitioner challenged the hearing officer's findings and the penalty imposed and initiated a CPLR Article 75 proceeding in Supreme Court seeking to have the arbitration award vacated. Supreme Court denied Petitioner's motion to vacate the award and Petitioner appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division said that in a CPLR Article 75 proceeding the grounds for vacating a hearing officer's decision rendered pursuant to Education Law §3020-a "include misconduct, abuse of power, and procedural irregularities." Where, as here, the parties are subject to compulsory arbitration, the decision "is subject to closer judicial scrutiny under CPLR 7511(b) than it would receive had the arbitration been conducted voluntarily."

To be sustained, said the Appellate Division, a decision in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious and must be in accord with administrative due process. In an appeal of a compulsory §3020-a arbitration decision, the Appellate Division said that "the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists."

Finding that the hearing officer's decision was rational, supported by adequate evidence, and not arbitrary and capricious, the court noted that under the controlling provisions of the Education Law "two consecutive annual ineffective ratings" constituted "a pattern of ineffective teaching or performance" and "a pattern of ineffective teaching or performance" constituted "very significant evidence of incompetence for purposes of this section."

Accordingly, the Appellate Division concluded that "It was rational for the hearing officer to rely on the 'ineffective' APPR ratings that Petitioner received during the relevant rating periods", as well as all the other evidence presented at the hearing, in sustaining the charge of incompetence.

Citing the so-called Pell Doctrine,** the Appellate Division said that "[u]nless an irrationality appears or the punishment shocks one's conscience, sanctions imposed by an administrative agency should be upheld" and then opined "[h]ere, the penalty of termination of [Petitioner's] employment was not irrational or shocking to one's sense of fairness." 

* Education Law §3020-a, as amended, provides for the compulsory arbitration of disciplinary charges filed against an educator by the appointing authority. The appointing authority or the employee may seek to confirm or vacate the arbitration award, as the case may be, in accordance with Subdivision 4 of §3020-a of the Education Law , which, in pertinent part, provides that "Not later than ten days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seventy-five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section ...." 

** Pell v Board of Education. of Union Free School District. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07127.htm

Termination of employment following extened absence without approval

Termination of employment following extended absence without approval  

Dep’t of Homeless Services v. Anonymous,OATH Index No. 1653/17

An agency employee [Anonymous*] who had worked in the New York City Borough of Manhattan was charged with being Absent Without Leave [AWOL] when she did not report to an assigned new workplace in another borough of New York City for over 13 months and failed to respond to notices regarding this absence.

Anonymous claimed that she was afraid to report to the new workplace because she had personally handled disciplinary action involving employees at that location. A psychologist who testified on Anonymous’ behalf opined that Anonymous suffered from depression and anxiety related to her reassignment to the new location.

The employer’s psychiatrist, on the other hand, testified that Anonymous  did not exhibit signs of severe anxiety or depression.

Office of Administrative Trials and Hearing Administrative Law Judge Astrid B. Gloade found this conflicting medical evaluations were of limited value as they were completed after the AWOL period.

Further, ALJ Gloade was not persuaded that Anonymous’ mental health prevented her from responding to department notices or reporting to work for over 13 months. Nor did the ALJ credit Anonymous’ contention that the relocation threatened her safety, as Anonymous' supervisors confirmed that security measures, including security guards, department police officers and "panic buttons" were in place.

Judge Gloade recommended that Anonymous be terminated from her position as a result of Anonymous' long, unexplained absence from her assigned duty station.

An appointing authority's may attempt to remove a tenured employee from his or her position for "absence" it deemed to be an abandonment of the position. In Ciccarelli v West Seneca Central School District, 107 AD2d 105, a teacher successfully challenged a Board of Education’s resolution [1]  holding that the educator had abandoned her position and [2] terminating her from her tenured employment. 

The Appellate Division held that the burden of proving that an educator had abandoned his or her tenured teaching position was upon the District. This, said the court, must be established "by clear and convincing evidence" that a teacher, by a "voluntary and deliberate act," intended to relinquish [the] teaching position and forfeit [his or her] tenure rights. Otherwise, ruled the Appellate Division, a tenured teacher may be terminated only in accordance with the provisions set out §3020-a of the Education Law.

In a similar situation involving an employee in the classified service [educators are in the unclassified service] a former rule of the New York State Civil Service Commission [4 NYCRR 5.3(d)] providing that a State employee absent for a period of ten or more days without an explanation would be deemed to have resigned from his or her position was held to violate the employee's right to administrative due process [Bernstein v Industrial Commissioner, 59 AD2d 678]. This type of provision, however, has survived in a number of  collective bargaining agreement [see New York State Off. of Mental Health v New York State Div. of Human Rights, 53 A.D.3d 887].

* Pursuant to OATH Rule of Practice section 1-49(d), respondent had requested that "Anonymous" be used in reporting this decision.

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Administrative due process must be provided the accused employee in a disciplinary arbitration proceeding

Administrative due process must be provided the accused employee in a disciplinary arbitration proceeding

2017 NY Slip Op 03853, Appellate Division, First Department

Petitioner, a tenured educator, initiated a CPLR Article 75 action seeking a court order vacating an arbitration award in which Petitioner was found guilty of multiple disciplinary charges and was terminated.

The Appellate Division sustained the arbitration award, noting that the following administrative due process requirements were satisfied:

1. Petitioner's right to administrative due process was not violated as Petitioner [a] was provided with appropriate notice, [b] was represented by counsel at a 13-day hearing and [c] had the opportunity to present evidence and cross-examine witnesses;

2. The hearing officer issued a detailed decision in which she [a] thoroughly analyzed the facts, [b] evaluated the credibility of witnesses and evidence presented and [c] arrived at a reasoned conclusion; and

3. Petitioner's claim that the arbitrator was bias was speculative and unsupported by the evidence.

As to the penalty imposed by the arbitrator, dismissal from the position, the Appellate Division opined that considering "Petitioner's teaching deficiencies over the course of three years, the absence of any improvement despite assistance offered by the appointing authority," and Petitioner's "refusal to acknowledge her shortcomings," imposing the penalty of termination "does not shock the court's sense of fairness," citing the so-called Pell standard [Pell v Board of Education,  34 NY2d 222.

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The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03853.htm

Failure to comply with contractual grievance procedures may not always serve as a basis a for a court's issuing a stay of arbitration where such issues are to be resolved by the arbitrator

Failure to comply with contractual grievance procedures may not always serve as a basis a for a court's issuing a stay of arbitration where such issues are to be resolved by the arbitrator

Matter of Arbitration Between Town of Greece and Civil Service Employees Association, Inc., Local 828, AFSCME, AFL-CIO, 2017 NY Slip Op 06785, Appellate Division, Fourth Department

The Town of Greece [Greece] initiated a CPLR Article 75 action seeking a permanent stay of the arbitration of a grievance arising from its termination of one of the Civil Service Employees Association, Inc., Local 828 [Local 828] members. Supreme Court denied Greece's application for a permanent stay of arbitration and directed it to hold a hearing pursuant to step two of the three-step grievance procedure set out in the collective bargaining agreement [CBA] between the parties "within 30 days."

Greece appealed and although the Appellate Division affirmed the Supreme Court's denial of the permanent stay of arbitration sought by Greece, it vacated that part of the Supreme Court's order that directed Greece "to hold a step two hearing."

The Appellate Division explained that Supreme Court erred in directing Greece to hold a step two hearing. Contrary to the court's determination, the Appellate Division said that "a step two hearing is not a condition precedent to arbitration under the terms of the CBA."

As the CBA contained "a broad arbitration clause and does not expressly identify any conditions precedent to arbitration," the Appellate Division said that any alleged failure of a party to comply strictly with the contractual grievance procedures or time limits is not a proper ground for a stay of arbitration because such issues are to be resolved by the arbitrator.

With respect to CBA between Greece and Local 828,  Appellate Division held that  "... as a step two hearing is a permissive and not a mandatory part of the CBA's grievance and arbitration procedure, strict compliance with each step in the procedure is not a condition precedent to arbitration."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06785.htm