Burden of proof shifts to the first responder if he or she fails to demonstrate a causative link between his or her illness and exposure to toxins at the World Trade Center activates

Burden of proof shifts to the first responder if he or she fails to demonstrate a causative link between his or her illness and exposure to toxins at the World Trade Center activates  

Fesler v Bratton, 2017 NY Slip Op 08881, Appellate Division, First Department

Retirement and Social Security Law §2[36][c] creates a rebuttable presumption that any condition or impairment of health resulting from a qualifying World Trade Center [WTC] event was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by the member's own willful negligence, "unless the contrary is proved by competent evidence."

Accordingly, first responders need not submit any evidence, credible or otherwise, of causation to obtain enhanced benefits if they have a qualifying condition but the burden is on the applicant to establish that "qualifying condition."

The Appellate Division agreed with Supreme Court's holding that in first responder Andrew Fesler failed to present sufficient credible evidence that his Crohn's disease was a qualifying condition or "new onset disease" within the meaning of §2[36][c].  The court noted that Fesler's personal physician had merely opined that it was "conceivable" that there was a link between Fesler's illness and exposure to toxins at the WTC site and that the articles he provided in support of his opinion were not relevant.

In view of this, the court concluded that respondent William J. Bratton, in his capacity as New York City Police Commissioner, was entitled to rely on the Medical Board's conclusion that the medical literature cited by Fesler did not provide evidence of such a causative link and the medical data showed that first responders did not have a higher incidence Crohn's disease.

Thus the burden of proof never shifted to NYC Police Department and Fesler was required to demonstrate a causative link between his illness and his alleged exposure to toxins at the World Trade Center site, which he failed to do.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08881.htm

Some information that give a teacher a reasonable assurance of continued employment for the purposes of Labor Law §590(10)

Some information that give a teacher a reasonable assurance of continued employment for the purposes of Labor Law §590(10)

Matter of Cieszkowska (Commissioner of Labor), 2017 NY Slip Op 08432, Appellate Division, Third Department

Labor Law §590(10) bars a professional employed by an educational institution from receiving unemployment insurance benefits during the period between two successive academic terms if the educational institution has given the professional a reasonable assurance of continued employment.

The Unemployment Insurance Appeal Board ruled that wages paid to claimant, a per diem substitute teacher [Claimant], could not be used to establish a valid original claim for unemployment insurance benefits between two successive academic terms because Claimant had received a reasonable assurance of continued employment pursuant to Labor Law §590(10). Claimant  timely asked the Board to reopen and reconsider its decision. The Board denied Claimant's application to reopen the matter and reconsider its decision and Claimant appealed the Board's rejecting Claimant's request to reopen the matter.

Noting that "A professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment," the Appellate Division explained that "A reasonable assurance . . . has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period."

Claimant acknowledged that the employer contacted her by letter at the end of the school year and informed her that:

[1] there would be a need for per diem substitute teachers during the next school year;

[2] that it was expected that the economic terms and conditions for employment for the upcoming year would be the same as the previous year; and

[3] that it was anticipated that there would be as much work for per diem substitute teachers during the upcoming year as in the previous year.

In consideration of these representations, the Appellate Division found that substantial evidence supports the Board's conclusion that Claimant received a reasonable assurance of continued employment at the end of the school year.

In contrast, in Matter of Papapietro (Commissioner of Labor),* the Appellate Division reversed a decision by the Unemployment Insurance Appeal Board that held that a per diem teacher was ineligible to receive unemployment insurance benefits. 

In Papapietro  the court ruled that the school district had not sent any letter to the teacher, nor provided him with any other form of notice, that made a representation regarding his continued employment after a recess.

* NYPPL's summary of the Papapietro decision is posted on the Internet at https://nyppl-research.blogspot.com/2017/12/unless-employer-provides-educator-with.html,

The Cieszkowska decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08432.htm

A Freedom of Information demand may trump an agreement to keep some or all of the terms of a disciplinary action settlement "confidential"

A Freedom of Information demand may trump an agreement to keep some or all of the terms of a disciplinary action settlement "confidential"
Santostefano v Middle Country Cent. Sch. Dist., 2017 NY Slip Op 09188, Appellate Division, Second Department

Guy Santostefano, employed as an educator by the Middle Country Central School District [District] In May 2015, was served with disciplinary charges pursuant to Education Law §3020-a. In August, 2015, Santostefano entered into a settlement agreement with the District resolving the charges, which agreement required Santostefano to resigned from the District effective August 6, 2015, whereupon the District would withdraw the charges it had filed against Santostefano.

In January 2016, Santostefanocommenced an action to vacate the settlement agreement alleging, in effect, that the terms of the settlement agreement permitting the District to disclose to Santostefano's prospective employers that Santostefano was brought up on disciplinary charges had caused harm to his career. Santostefano also alleged, among other things, that he was fraudulently induced into executing the settlement agreement.

The District asked Supreme Court to dismiss Santostefano'scomplaint based on his failure to timely serve a notice of claim, and for failure to state a cause of action. Supreme Court granted the District's motion and Santostefano appealed.

As to Santostefano's failure to serve a notice of claim, the Appellate Division, noting that "In general, the service of a timely notice of claim pursuant to Education Law §3813(1) is a condition precedent to the commencement of an action or proceeding against a school district, and failure to comply with this requirement is a fatal defect [except] when a litigant seeks only equitable relief, or commences a proceeding to vindicate a public interest."

Here, said the court, Santostefanosought to vindicate a private right, Supreme Court properly granted the District's motion to dismiss his complaint for failure to timely serve a notice of claim.

Addressing this issue of Santostefano's claim that he had been "fraudulently induced into entering into the settlement agreement, the Appellate Division observed that "To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR §3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Here, said the court, the settlement agreement "utterly refuted" Santostefano's factual allegations and "conclusively established a defense to the complaint as a matter of law" as the settlement agreement conclusively established a defense to the allegations that Santostefanowas fraudulently induced into entering into the settlement agreement by the District's oral representations, as those allegations were barred by the specific disclaimer provisions contained in the settlement agreement.

With respect to disclosing the terms of a settlement agreement resolving a disciplinary action, is does such an agreement trump a Freedom of Information demand to disclose the terms of the disciplinary settlement?

Consider the ruling in LaRocca v Jericho UFSD, 220 AD2d 424.

In LaRocca, the Jericho School District had filed disciplinary charges against the principal of one of its schools. Subsequently the Jericho School Board authorized its superintendent to negotiate a settlement that would dispose of the matter. A settlement was reached and the Board adopted a motion withdrawing its charges against the principal without prejudice.

Anthony LaRocca, vice-president of the Jericho Teachers Association, asked for a copy of the settlement agreement on behalf of the teachers supervised by the principal.

LaRocca’s request was denied on the grounds that (a) providing the teachers with a copy “would constitute an unwarranted invasion of personal privacy” and (b) the document relates to “intra-agency or inter-agency materials which the School District is not required to disclose.” LaRocca sued under the Freedom of Information Law [FOIL] (Article 6, Public Officers Law), contending that all records of a public agency are “presumptively accessible” and the settlement agreement did not fall within any of the recognized exceptions set out in FOIL.

Although Supreme Court dismissed LaRocca’s petition [LaRocca v Jericho UFSD, 159 Misc2d 90], the Appellate Division reversed, explaining that the settlement agreement did not constitute an “employment history” as defined by FOIL and therefore is presumptively available for public inspection. Significantly, the Appellate Division said that “as a matter of public policy, the Board of Education cannot bargain away the public’s right to access to public records.”

The Appellate Division ruled that the settlement agreement or any part of it providing for confidentiality or purporting to deny the public access to the document “is unenforceable as against the public interest.”

In contrast, however, the court opined that where a settlement agreement provided that the parties would keep its terms “confidential,” its subsequent disclosure pursuant to FOIL does not necessarily excuse a party breaching other terms and conditions unrelated to such disclosure set out in the agreement [see Gosden v Elmira City School District, 90 AD3d 1202]. The settlement agreement targeted in LaRocca contained references to charges that the principal denied or were not admitted, together with the names of certain teachers. The Appellate Division ruled that disclosure of such parts of the settlement agreement would constitute an unwarranted invasion of privacy within the meaning of FOIL.

Another decision, Anonymous v Board of Education of the Mexico Central School District, 62 Misc 2d 300, indicates that a public employer may not, by private agreement, limit the public’s right to access to records which are otherwise subject to disclosure under FOIL. In Mexico the court said that an agreement to keep secret that to which public has a right of access under FOIL unenforceable as against public policy.

In addition, State Education Law §1133.1 provides that a school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by Article 23-B of the Education Law in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made.

The Santostefano decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09188.htm

Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday January 2, 2018

Click on text highlighted in color to access the full report

Employee PIP’d, then RIF’d, after ending consensual affair advances quid pro quo harassment claim

Incentive portions of EEOC wellness regs vacated but effective date delayed until 2019

Suit challenges Facebook, employers using features that may hide job opportunities from older workers

Union's duty of fair representation

Union's duty of fair representation

Okpo v City of New York, 2017 NY Slip Op 09272, Appellate Division, First Department

In the words of the Appellate Division, "[t]he nature and purpose of the duty of fair representation — representation in collective bargaining grievances — thus does not support expansion of the duty to cover article 78 proceedings."*

Pauline Okpo, a probationary employee, was terminated from her position and filed a grievance objecting to her dismissal. The union declined to challenging Okpo's dismissal and Okpo initiated an Article 78 in Supreme Court. Supreme Court granted the union's motion for summary judgment and dismissed Okpo's complaint.

The Appellate Division unanimously affirmed the Supreme Court's ruling, explaining:

1. As a probationary employee, Okpo's termination was not the basis for a "grievance" under the controlling collective bargaining agreement [CBA]. Accordingly, the employee organization had no duty of fair representation with respect to Okpo's challenging her termination during her probationary period:

2. Assuming that the employee organization did, in fact, owed Okpo a duty of fair representation, it would nonetheless have had no duty to initiate a CPLR Article 78 proceeding on her behalf challenging her termination while serving as a probationary employee as "[t]he duty of fair representation is rooted in the bargaining agent's exclusive statutory authority to pursue grievances on behalf of covered employees under the CBA"; and

3. The nature and purpose of the duty of fair representation — representation in collective bargaining grievances and such a duty does not support expansion of the duty to cover Article 78 proceedings.

In contrast, the Appellate Division pointed out that as a probationary employee, however, Okpo could have challenged her termination herself in an Article 78 proceeding (see e.g. Matter of Castro v Schriro, 140 AD3d 644, affd29NY3d 1005).

* Typically litigation arising involving collective bargaining grievances would be prosecuted pursuant to Article 75 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09272.htm