Considering the employee’s history of misconduct, her inappropriate treatment of patients, and other factors, the hearing officer recommended termination of employment

Considering the employee’s history of misconduct, her inappropriate treatment of patients, and other factors, the hearing officer recommended termination of employment

NYC Office of Trials and Hearings, OATH Index No. 486/18

The Appointing Authority served disciplinary charges against an employee alleged the employee, a service aide:

1) made disrespectful comments to her supervisor;

2) announced that there was going to be a fight and instigated a verbal altercation with a co-worker;

3) used profanity while snatching a meal tray from a patient; and

4) took a meal tray from a patient before he had finished eating and rudely commented to the patient that he was inadvertently exposed.

After a three-day trial, OATH Administrative Law Judge Joycelyn McGeachy-Kuls found that Appointing Authority had proven the charged misconduct.

Taking into consideration service aide's history of misconduct, the disruption that she caused in the workplace and her inappropriate treatment of patients, Judge McGreach-Kuls recommended that the aide be termination from her position.

The Appointing Authority adopted the ALJ's findings and recommendation and terminate the service aide from her position.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-486.pdf

The burden of serving a proper "notice to appear" at an administrative hearing is the responsibility of the charging party

The burden of serving a proper "notice to appear" at an administrative hearing is the responsibility of the charging party

Pereira v Sessions, USSC, Docket 17-459

The Illegal Immigration Reform and Immigrant Responsibility Act provides that a nonpermanent resident who is subject to removal may be eligible for cancellation of removal if he or she has “been physically present" in the U.S. for a continuous period of not less than 10 years.* Continuous presence is viewed as interrupted when the alien is served a w written notice to appear and specifying the “time and place" of proceedings. In the Pereira decision the Supreme Court commented that the Department of Homeland Security often serves notices that fail to specify the time, place, or date of initial removal hearings.

Pereira was served with a “notice to appear” that ordered him to appear at a date to be set in the future. Ultimately a notice was mailed to Pereira setting the date and time for his hearing but it incorrectly addressed and Pereira was able to show that he had never received the notice and contended that this meant that he had been continuously present for more than 10 years as the so-called "stop-time" rule had not been triggered, which would have been the case had proper service been effected advising him of the date, time and place of his "deportation hearing."

The Supreme Court, reversing a Circuit Court of Appeals ruling, explained that "A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear” under section 1229(a) and does not trigger the stop-time rule."

Accordingly Pereira was able to successfully claim that he had been "physically present" in the United States for more than ten years.

The same theory is applied in New York State cases involving "proper service" of a notice of discipline in DiPillo v Jacknis.**

DiPillo was dismissed from his position with Westchester County after being found guilty of the charges filed against him by the hearing officer. The disciplinary hearing, however, was conducted in absentia. Claiming that he had not received any written notice of the charges preferred against him as required by Civil Service Law §75, the employee sued seeking to [1] have the disciplinary determination vacated and [2] reinstatement to his position with salary and benefits retroactive to the date of his termination.

According to the decision, the notice of disciplinary action was sent to DiPillo by Certified Mail but that the envelope was returned as "unclaimed" by the United States Postal Service. The envelope also indicated that the letter was mailed to a Briarcliff Manor, NY 10501 but that the address used by the appointing authority was "incomplete." Also troublesome to the court was the fact that the employee "could have been served personally at his place of employment after the notice came back unclaimed.” At the very least, said the court, the appointing authority" could have inquired as to the employee’s address to ensure that the notice was properly sent.”

Supreme Court found that under the circumstances the employee had not been served with the written notice of disciplinary charges mandated by Section 75 of the Civil Service Law and granted the employee’s petition, citing Bellatoni cited DelBello v. New York City Transit Authority, 151 AD2d 479, in support of its ruling.

In DelBello the Appellate Division affirmed a Supreme Court decision annulling and vacating a determination terminating DelBello’s employment. In that case, hearing notices were sent to an address from which DelBello had moved and all notices were returned to the Authority unopened and marked "moved-left no address" and that the Authority failed to take any other steps to notify the DelBello of the pending charges.

In the words of the Appellate Division “Clearly mailing the notice to the petitioner's last known address was not notice reasonably calculated, under all the circumstances, to apprise DelBello’s of the pendency of the [disciplinary proceedings] and afford [him] an opportunity to represent [his] objections.” In contrast, noted the Appellate Division, the Authority regarded the failure of [DelBello] to receive notice of the hearing and charges as [DelBello’s] problem”.

Supreme Court remanded the matter to the appointing authority, "to be heard before a different Hearing Officer."

In contrast, an employee’s claim that she did not receive notice of disciplinary charges mailed to her was rebutted by employer’s evidence of proper mailings. In a case involving the Board of Educ. of City School District of City of New York,*** the court noted that the New York City Board of Education [BOE] sent a “notice of charges” to a tenured teacher by certified mail, return receipt requested and by regular mail.

Although the certified mail copy of the Charges was returned to BOE as “unclaimed,” the regular mail copy of the Charges was never returned. BOE subsequently again sent a written statement detailing the Charges against the teacher in accordance with Education Law §3020-a by certified mail, return receipt requested, and by regular mail.  Again the certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned. A third mailing was sent via certified mail, return receipt requested, and by regular mail. This time neither copy was returned to DOE.

Ultimately a Disciplinary Panel held a hearing in absentia**** and the teacher was found guilty of the charges filed against her and terminated. When BOE refused to reinstate her the teacher filed a petition seeking a court order directing BOE to reemploy her and award her back salary and benefits contending that she never received the regular mailings of the Notice of Charges and the written statement detailing the Charges “because mail often gets lost in her large apartment complex.”

Supreme Court said that “in an Article 78 proceeding, the court’s role is to determine whether the challenged administrative action had a rational basis or whether it was an arbitrary and capricious action [and] the administrative action must be upheld unless it ‘shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a law.” In this instance the court found that BOE “properly mailed multiple copies of the Notice of Charges and the actual Charges." Only the certified mail copies were returned, and they were returned as unclaimed, indicating that the teacher failed to pick them up from the post office, not that they were improperly sent.

Given BOE’s proof of mailings, the court was not persuaded by the teacher’s statement that she did not receive the Notice of Charges or the Charges. In the words of the court, the teacher’s “bald assertion of non-receipt is insufficient to overcome the presumption that properly sent mail is received.” Accordingly, Supreme Court held that it was not arbitrary or capricious for BOE "to proceed with the inquest after properly mailing multiple letters informing the teacher of the situation" and dismissed her petition.

* 8 U.S.C. 1229(b)(1)(A).

** Not published in the Official Reports. However, the decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_52004.htm

*** 2008 NY Slip Op 31935(U), Supreme Court, New York County, [Not selected for publication in the Official Reports]. The decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2008/2008_31935.pdf

**** The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a “hearing in absentia” and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee’s failure to appear at the hearing as scheduled is, in effect, a concession of guilt.

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Matter of Terry v County of Schoharie, 2018 NY Slip Op 04612, Appellate Division, Third Department

Petitioner in this CPLR Article 78 action alleged that Schoharie County [Schoharie] had abolished her position in violated Civil Service Law §80 as it was done in bad faith and, with respect her federal claims, violated her constitutional rights to due process, equal protection and political affiliation.

Schoharie removed the proceeding to Federal District Court and that court ultimately dismissed all of Plaintiff's federal claims on the merits. The District Court, however, declined to exercise supplemental jurisdiction over Plaintiff's remaining state law claims and remanded them back to Supreme Court. Supreme Court then granted Schoharie's motion for summary judgment dismissed Plaintiff's petition and Plaintiff appealed.

The Appellate Division, indicating that "A public employer may, in the absence of bad faith, collusion or fraud, abolish positions for the purposes of economy or efficiency",  noted that Schoharie had argued that Petitioner's position was abolished as part of a cost-saving measure due to fiscal restraints resulting from flooding caused by Hurricane Irene and was experiencing a loss of population as well as a shrinking tax base and had eliminated positions and restructured several County departments by consolidation or separation of functions. To rebut such proof the Appellate Division said that Petitioner was required to prove "that the abolition of [her] position was brought on by bad faith or in an effort to circumvent the Civil Service Law."

Addressing the issue of Schoharie's alleged bad faith, the Appellate Division said "hat issue was squarely addressed and decided by the District Court in its resolution of Petitioner's federal claims." In dismissing the federal claims, grounded upon the same allegations as those underlying the claimed Civil Service Law violations, the District Court "expressly held that the evidence submitted by [Schoharie] established that Petitioner's position was abolished as a cost-saving measure and that there was no evidence to support Petitioner's "self-serving testimony that [Schoharie] acted in bad faith" or in retaliation for Petitioner's change of political party enrollment.

Noting that the doctrine of collateral estoppel "precludes a party from relitigating an issue which has previously been decided against [him or] her in a proceeding in which [he or] she had a fair opportunity to fully litigate the point," regardless of whether the tribunals or causes of action are the same, the Appellate Division observed that the factual issue of bad faith "was raised, necessarily decided and material in the [District Court], and [Petitioner] had a full and fair opportunity to litigate the issue." Thus, said the court, Petitioner is barred by the principles of collateral estoppel from relitigating that issue in the course of her Article 78 action.

In the absence of bad faith, Schoharie's showing of an economic justification for the elimination of Petitioner's position could only be countered by proof that "no savings were accomplished or that someone was hired to replace [Petitioner]." Petitioner, however, did not dispute that the reorganization of her department and the concomitant elimination of her position, resulted in fiscal savings to the County or that Schoharie did not replace her.

Although Petitioner contended that many of her duties that Petitioner had been assumed by another Senior Planner and that Schoharie violated the prohibition in Civil Service Law §61(2) against assigning civil servants to out-of-title work by assigning supervisory responsibilities to that Senior Planner, the Appellate Division found that such work "either falls within the official duties set forth in the Senior Planner job classification or is a reasonable and logical outgrowth of those duties."

Accordingly, the Appellate Division concluded that Petitioner failed to raise an issue of fact in response to Schoharie's showing that its actions "were part of a good faith effort to reorganize a municipal department for the purposes of reducing costs and increasing efficiency," her petition was properly dismissed by Supreme Court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04612.htm

Benefits available to certain New York City management personnel modified by subsequent personnel order issued by the mayor

Benefits available to certain New York City management personnel modified by subsequent personnel order issued by the mayor

Matter of Kinach v de Blasio, 2018 NY Slip Op 04425, Appellate Division, First Department

The New York City Mayor's Personnel Order No. 2016/1 established certain paid leave benefits and modified a planned salary increase and reduced the amount of annual leave for managers with 15 or more years of experience. In addition, the order provided that, effective December 22, 2015, such New York City personnel subject to the order would be entitled to 30 days paid parental leave (PPL) every 12-month period for the birth of a child, adoption, or foster care.

MPO 2016/1 modified MPO 2015/1 and MPO 2015/2 by eliminating a 0.47% wage increase scheduled to go into effect on July 1, 2017 and modified the annual leave schedule for covered titles by eliminating the accrual of the 26th and 27th annual leave days, capping the accrual of annual leave days at 25 days, in order to fund these benefits.

Petitioners, five managers all over the age of forty (40) and not in a collective bargaining unit within the meaning to Article 14 of the Civil Service Law, advanced a number of challenges involving MPO No. 2016/1 with respect to the modification of the benefits set out in MPO 2015/1 and MPO 2015/2.

Addressing Petitioners' claims of unlawful discrimination based on age, the Appellate Division held that Petitioners "failed to state a claim of age discrimination" as defined in the Administrative Code of City of NY §8-107, the New York City Human Rights Law or Executive Law §296[1][a] the New York State Human Rights Law and the adverse action alleged by Petitioners did not occur under circumstances giving rise to an inference of discrimination.

The court explained that the Petitioners' claim [a] was based upon the false premise that women over 40 years of age cannot bear children, [b] ignored the fact that PPL benefits were available to biological fathers, regardless of age, who becomes a parent through adoption or by fostering, and [c] was undercut by Petitioners' submission of data reflecting that members of their age group received PPL benefits.

In the words of the Appellate Division, "MPO No. 2016/1 is facially neutral and applies equally to all covered employees, regardless of age ... and no disparate impact has been shown" by Petitioners.

Addressing Petitioners equal protection argument, the court said Petitioners failed to demonstrate any violation of Article 1, §11 of the New York State Constitution as "MPO No. 2016/1 treats all similarly situated employees alike." Further, the Appellate Division found that the State's "non-impairment clause" set out in Article V, §7, of the State Constitution was "not implicated as the challenged action does not involve a change directly related to retirement benefits.

Considering the Petitioners' arguments challenging the "cost-cutting" measures the City elected to use "to pay for the PPL benefit," the Appellate Division held that the method selected by the City was not arbitrary and capricious and, notwithstanding Petitioners' claim that less extreme cost-cutting measures should have been taken, the court explained that such a belief "does not render [the City's] determination irrational."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04425.htm

Filing a noticed of claim may be required as condition precedent to initiating litigation against a public entity

Filing a noticed of claim may be required as condition precedent to initiating litigation against a public entity

Fotopoulos v Board of Fire Commr. of the Hicksville Fire Dist., 2018 NY Slip Op 03128, Appellate Division, Second Department

New York courts have distinguished between proceedings brought against public entities  "which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest." In Union Free School Dist. No. 6 of Towns of Islip and Smithtown v New York State Div. of Human Rights Appeal Board, 35 NY2d 371, 380, motion to reargue denied, 36 NY2d 807, it was held that an aggrieved individual must file a timely notice of claim "as to the former but not as to the latter."*

In this CPLR Article 78 action a volunteer firefighter [Petitioner] with the Hicksville Fire Department [Department] and a dispatcher employed by the Hicksville Fire District [District], working under the direction of the Board of Fire Commissioners of the Hicksville Fire District [Board] until he was allegedly forced to resign from both of these positions by coercion and duress.

When Petitioner subsequently attempted to withdraw his resignation, he was advised that the Department, the District, and the Board [collectively Respondents] refused to approve his request to withdraw the resignation.**

Petitioner initiated a CPLR Article 78 proceeding seeking a court order compelling Respondents to reinstate him to his former positions as a dispatcher and as a volunteer firefighter with all of the benefits of these employment including back pay. Respondents opposed the petition arguing, among other things, that the petition should be denied since Petitioner failed to file a notice of claim as required by General Municipal Law §50-e.

Supreme Court denied the petition and dismissed the proceeding, determining  that the Petitioner's failure to file a notice of claim precluded the court from considering the complaint. Petitioner appealed.

The Appellate Division explained that, as a general rule, "[t]he service of a notice of claim is a condition precedent to the maintenance of an action against a public corporation to recover damages for a tortious or wrongful act" but such a notice of claim requirement does not apply when a litigant seeks only equitable relief or commences a proceeding to vindicate a public interest. Further, said the court, a litigant who seeks "judicial enforcement of a legal right derived through enactment of positive law" is exempt from the notice of claim requirement.

Finding that in Petitioner's case both equitable relief and the recovery of damages in the form of back pay was demanded, the Appellate Division sustained the Supreme Court's ruling, holding that "the filing of a notice of claim within 90 days after [Petitioner's] claim arose was a condition precedent to the maintenance of this proceeding."

* It should be noted that in CSEA v Lakeland Central School District, 230 A.D.2d 703, the Appellate Division rejected Lakeland's theory that CSEA’s action for damages “for breach of a collective bargaining agreement” should be dismissed because CSEA had not complied with the “notice of claim” requirements set out in §3813 of the Education Law. The Court said that “the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted [Lakeland's] waiving compliance with that requirement.”

** Typically once the employee has delivered his or her resignation to the appointing authority or its designee, he or she may not withdraw or rescind the resignation without the approval of the appointing authority. For example, 4 NYCRR 5.3(c), which applies to employees of the State as an employer, provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” Many local civil service commissions and personnel officers have adopted a similar rule.

The Fotopoulos decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03128.htm