Negotiating religious days off

Negotiating religious days off

Binghamton CSD v Binghamton T.A., NYS Supreme Court [Not selected for publication in the Official Reports]

The collective bargaining agreement between the Binghamton Central School District and the Binghamton Teachers Association provided for paid leave for "days for religious observance in accordance with a list agreed to by the parties." The list the parties later agreed upon set out "approved leave days" for observing a number of Christian, Jewish and Eastern Orthodox religious holidays.

When the district denied a teacher's request for paid leave to observe Ash Wednesday, a day of religious observation included on "the list," the teachers association filed a contract grievance. The grievance could not be resolved by the parties and the teachers demanded that the grievance go to binding arbitration.

The district objected  and sought a court order staying the arbitration. The district justified its position on the grounds that time off for a religious observance was unconstitutional because it violated the "Establishment Clause." It argued that any arbitration award in favor of the teachers association would violate law and public policy and thus be unenforceable.

To support its position, the district cited a PERB ruling [CSEA and Eastchester UFSD, 29 PERB 3041]. In the Eastchester case, PERB concluded that negotiating days off for religious observances was not a mandatory subject of collective bargaining.

The Court decided that in this instance the scope of the agreement to arbitrate was not the issue. Rather, the question to be resolved was whether or not "the particular subject matter of the grievance is an authorized subject of negotiation."

Noting that PERB had not ruled that the subject of the dispute -- paid leave for absences for a religious observance -- was a "prohibited subject of negotiations," the Court concluded that "once both sides do bargain and agree on a permissive subject [of negotiations], their accord is as binding and enforceable as if the subject had been one of required negotiations."

The bottom line: the court declined to grant the district's motion to stay the arbitration. Why? Because, the court explained, the district and the association were free to negotiate and ultimately contract, to submit the subject dispute to arbitration.

What about the constitutional issue raised by the district? The court decided that negotiating paid absence to observe religious holidays did not offend the Establishment Clause because "the leave provision negotiated neither forces nor prohibits religious participation, nor does it favor one particular religion over another...."

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

The doctrine of collateral estoppel bars the relitigation of a legal or factual issue that was previously decided

The doctrine of collateral estoppel bars the relitigation of a legal or factual issue that was previously decided

Washington v NYC Department of Education, USCA, 2nd Circuit, 17-3776-cv

In Grieve v Tamerin, 269 F.3d 149, the Circuit Court of Appeals said that the doctrine of collateral estoppel, also termed issue preclusion, bars re-litigation of a legal or factual issue that was previously decided where:

(1) the issues in both proceedings are identical,

(2) the issue in the prior proceeding was actually litigated and actually decided,

 (3) there was [a] full and fair opportunity to litigate in the prior proceeding, and

(4) the issue previously litigated was necessary to support a valid and final judgment on the merits.”

Further, the opinion continues, “New York courts will give administrative determinations preclusive effect if made in a quasijudicial capacity and with a full and fair opportunity to litigate the issue,” citing Burkybile v. Bd. of Educ. of Hastings-On-Hudson Union Free Sch. Dist., 411 F.3d 306.

In this action Janet Washington [Plaintiff] asserted that §3020-a hearings do not result in the sort of final judgment that can give rise to collateral estoppel in federal court. The Circuit Court of Appeals disagreed, explaining that "it is well-settled that a “[S]ection 3020-a hearing is an administrative adjudication that must be given preclusive effect” when the elements of collateral estoppel are satisfied."

The Circuit Court ruled that Plaintiff's §3020-a hearing satisfies the elements of collateral estoppel and has preclusive effect as the issue of alleged unlawful discrimination was actually litigated and decided, and the arguments raised in the §3020-a hearing were identical to those briefed for the discrimination claim on appeal. Further, said the court,  Plaintiff acknowledges that the hearing officer "ruled decisively and specifically on whether [Plaintiff] suffered disability discrimination after considering the arguments from each side," concluding that Plaintiff's “evidence of actual animus is weak” and that “just cause exists for the termination of [Plaintiff’s] employment”.

In the words of the court, "[t]he Section 3020-a hearing also afforded a full and fair opportunity to litigate the issue of discrimination. Plaintiff was permitted to request the production of material, call and cross-examine witnesses, and present relevant evidence...." The court acknowledged that Plaintiff had challenged certain of the arbitrator’s evidentiary decisions, but opined that "the proceeding is not rendered unfair or incomplete because some evidentiary rulings were unfavorable. "

Holding that the district court correctly concluded that the Plaintiff’s discrimination claims were collaterally estopped by the factual findings of her §3020-a hearing, the Circuit Court affirmed the lower court's ruling.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/112119e1-395f-4de2-89fe-3ac841261b89/1/doc/17-3776_so%20(2).pdf#page=3&zoom=auto,-146,394

Determining if an employee is eligible for accidental disability retirement benefits

Determining if an employee is eligible for accidental disability retirement benefits

Daquino v DiNapoli, 2018 NY Slip Op 03201, Appellate Division, Third Department

An employee [Petitioner] appealed the Hearing Officer denial of the Petitioner's application on the ground that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law, which decision was adopted by the State Comptroller.

In this action challenging the denial of Petitioner's application for accidental disability retirement benefits on the ground that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law, the Appellate Division said that Petitioner bore the burden of establishing her entitlement to accidental disability retirement benefits and Comptroller's determination will be upheld if supported by substantial evidence. Further, said the court, in order for an incident to constitute an accident within the meaning of the Retirement and Social Security Law, it must be "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact."

The State Comptroller had adopted the findings and conclusions of the Hearing Officer, who found that slipping on the water "was a sudden, fortuitous mischance and undoubtedly unexpected and out of the ordinary" but denied benefits based solely upon Petitioner's failure to demonstrate that the water she had slipped on was not readily observable.

Citing a recent decision by the Court of Appeals, Matter of Kelly v DiNapoli (30 NY3d 674, in which that court stated that "the requirement that a petitioner demonstrate that a condition was not readily observable in order to demonstrate an 'accident' is inconsistent with our prior case law," the Appellate Division annulled the Comptroller determination, explaining that "substantial evidence does not support the determination that the incident was not an accident."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03201.htm

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration

Matter of the Arbitration between Unit 8251, Local 842, CSEA v City of Troy, 169 AD2d 871

 Under the terms of a Taylor Law agreement, an employee against whom disciplinary charges had been filed was entitled to a three step disciplinary proceeding. The third step was arbitration.

In the Matter of the Arbitration between Unit 8251, Local 842, CSEA v City of Troy, the basic issue was the effect of an employee's pre-arbitration resignation on his or her right to demand arbitration.

The employee, Patrick Washington, was found guilty of four acts of misconduct. The hearing officer recommended that Washington be terminated. A few days later Washington submitted his resignation.* On the same day that Washington submitted the resignation the union filed a demand for arbitration. The City refused to submit the issue to arbitration on the grounds that Washington, having resigned from his position, was no longer an employee and thus was not covered by the collective bargaining agreement.

 The Union filed a legal action seeking a court order compelling the City to submit the matter to an arbitrator. The Union alleged that Washington had been coerced into submitting the resignation and thus it was null and void. Accordingly, it argued, Washington, not having lawfully resigned from his position, was still covered by the Taylor Law agreement.

 The Appellate Division rejected the Union's claims regarding coercion. The decision notes that a union official and a city official simultaneously spoke to Washington regarding the ramifications of his decision to resign and that "Washington persisted in this course of action and signed a formal, written notice of resignation, witnessed by both officials."

 Under the circumstances, the Appellate Division found that there was no evidence of coercion and that having resigned from his position, Washington was no longer covered by the Taylor Law agreement.

 As to the issue of a resignation being coerced from an employee or obtained under duress, the courts have concluded that where an appointing authority has the right, if not the duty, to take disciplinary action against an individual, "it was not duress to threaten to do what one had the legal right to do" [Rychlick v Coughlin, 63 NY2d 643].

 Rychlick, in the presence of a union representative, was told that unless he submitted his resignation formal disciplinary charges would be filed against him. Although allowed to confer with his union representative, he was told that he would not be given additional time to confer with an attorney. He was also then advised that unless he resigned, charges would be filed. Rychlick submitted his resignation.

 A few days later Rychlick asked to withdraw the resignation on the grounds that it had be "forced" from him. When his request was denied, Rychlick sued, claiming the resignation had been obtained under duress and thus was void.

 Ultimately the Court of Appeals upheld the agency's refusal to allow Rychlick to withdraw the resignation, indicating that the "threat to file formal charges ... if [Rychlick] did not resign does not constitute duress."

* N.B. The Rules of the State Civil Service Commission, which apply to State officers and employees, provide that "every resignation shall be in writing" [4 NYCRR 5.3]. Most local commissions and personnel officers have adopted a similar rule or regulation.