A workers' compensation carrier's unexcused error in submitting a pre-conference statement constitutes a waiver to any defenses to the employee's claim

A workers' compensation carrier's unexcused error in submitting a pre-conference statement constitutes a waiver to any defenses to the employee's claim
Love v Village of Pleasantville, 2018 NY Slip Op 03794, Appellate Division, Third Department

The genesis of the appeal was the Workers' Compensation Board's [Board] ruling, among other things, that the employer and its workers' compensation carrier [jointly "Carrier"] waived their defenses to the injured Town employee's [Claimant] workers' compensation claim.

Carrier had controverted the claim by filing a prehearing conference statement, which it served on Claimant and a law firm that did not represent Claimant. On the same day Claimant's counsel filed with the Board, and served on Carrier, an attorney/representative certification indicating that he had been retained by Claimant to represent him in the matter.

Subsequently a notice of a scheduled prehearing conference date was sent to the parties by the Board, a copy of which sent to Claimant's counsel and which notice included Claimant's counsel's address.

Carrier next filed an amended prehearing conference statement the day before the conference hearing, again serving Claimant and a law firm that did not represent Claimant.

Ultimately, the Board ruled, among other things, that Carrier waived its defenses to the claim because it did not serve a prehearing conference statement on Claimant's counsel.

In response to Carrier's appeal, the Appellate Division sustained the Board's determination noting that §25(2-a)(d) of the Workers' Compensation Law requires that a prehearing conference statement be filed 10 days prior to the conference. This directive is also set forth in 12 NYCRR 300.38(f)(1) and in the notice of prehearing conference sent to the parties by the Board. Further, 12 NYCRR 300.38 states that a "Failure by the insurance carrier to timely serve upon all other parties . . . the [prehearing] conference statement . . . shall result in a waiver of defenses to the claim."

Observing that [1] the pre-conference statement was not filed within the requisite statutory time period; [2] Carrier failed to serve Claimant's counsel with a prehearing conference statement; nor [3] did Carrier attempt to correct its erroneous service upon the wrong law firm, the Appellate Division said it found Carrier's argument that because "no prejudice to Claimant resulted from these omissions," its failure to properly serve Claimant's counsel should be excused.

Such conduct, said the court, can only be excused where the legal representative of the insurance carrier submits an affidavit that the error was due to good cause and that the insurance carrier exercised good faith and due diligence. In this instance the Carrier did not submit such an affidavit.

Accordingly, the Appellate Division said it found no reason to disturb the Board's finding that Carrier waived its defenses to the claim by failing to properly serve Claimant's counsel.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03794.htm

Summaries of recent New York City Office of Administrative Trials and Hearings decisions

Summaries of recent New York City Office of Administrative Trials and Hearings decisions

Source: New York City Office of Administrative Trials and Hearings 

Excessive absences

Office of Administrative Trials and Hearings , OATH Index No. 108/18

OATH Administrative Law Judge Kara J. Miller sustained a charge of excessive absence for a New York City  eligibility specialist [Respondent] who was absent 149 days during a 15-month period.

ALJ Miller noted that even if Respondent's absences were authorized or documented, they still counted towards her total number of absences because she was charged with excessive absenteeism, not unauthorized absences.

Although the agency’s rules do not define what constitutes excessive absence, relevant factors such as the Respondent’s absentee rate was 61 percent, that many of her absences were unplanned, that she exhausted her leave balances, that she received warnings about her attendance, and that her absences had a negative impact on her unit, established the charge of excessive absenteeism.

As Respondent was previously disciplined for similar misconduct, termination of her employment was recommended.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-108.pdf 

Employee's testimony concerning routes taken and time worked corroborated by GPS evidence

Office of Administrative Trials and Hearings , OATH Index No. 1417/18

Respondent, a New York City traffic device maintainer, was found to have failed to secure his tools and failed to keep his truck clean.

OATH Administrative Law Judge Joycelyn McGeachy-Kuls dismissed a charge that Respondent failed to timely report to his field work assignment.

Further, Judge McGeachy-Kuls found Respondent's testimony regarding routes taken and time worked, corroborated by GPS evidence, was credible. A three-day suspension was imposed for the proven misconduct.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1417.pdf 

Termination recommended worker who refused to submit to a drug test following an accident at work and was found guilty of other charges

Office of Administrative Trials and Hearings , OATH Index No. 1566/

A New York City sanitation worker [Respondent] was charged with refusing an order to take a drug test following an accident, under Department rules which require a test after an accident causing “significant equipment or property damage.”

The evidence showed that the Respondent drove a front-end loader which hit a salt spreader. The spreader had to be taken out of service and was repaired by two metal repair technicians.

Four supervisors examined the damage and all concluded it was significant. ALJ Spooner found the Department had a sufficient basis to order the drug test. He also credited a supervisor’s testimony that after he ordered the Respondent to take the test, the Respondent left the garage.

The Respondent also failed to submit documentation for emergency leave, used an ethnic slur in a report, and failed to report to the clinic as directed.

The ALJ recommended that the appointing authority terminate the Respondent.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1566.pdf

Selected Links to featured Employment Law News items from WK Workday

Selected Links to featured Employment Law News items from WK Workday

Posted September 6, 2018

Click on text highlighted in color to access the full report

Top labor and employment developments for August 2018

Chart of nonunit positions showed information requested by union—and withheld by employer—was relevant

FCRA class action revived because lost opportunity to respond to background check was concrete injury

Requiring applicant BNSF perceived had a back impairment to pay for MRI, revoking job offer when he refused, showed disability bias

Former police dispatcher who received bad references after she sued can proceed with 1st A retaliation claim

Dispute over retiree healthcare benefits not subject to arbitration as retirees are not ‘employees’ under CBA

Email to board of directors, letter from attorney don’t ‘remotely’ support FLSA reprisal case

The shifting burdens of going forward in cases alleging unlawful discrimination

The shifting burdens of going forward in cases alleging unlawful discrimination

Haughton v Town of Cromwell, Cromwell Police Department, USCA, Second Circuit, Docket 17-2412-cv [2018]

Robert Haughton, a Town of Cromwell, Connecticut, police officer, alleged that the Town refused to assign to the position of Detective because of racial or ethnic discrimination in violation of Title VII of the Civil Rights Act.

While it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin," the Circuit Court explained that an aggrieved employee is required to demonstrate a prima facie case of disparate treatment, at which point the burden shifts to the employer to demonstrate that the employment decision was made for 'legitimate, nondiscriminatory' reasons."

Further, said the court, if the employer meets this burden, the plaintiff must then “offer evidence sufficient to support a reasonable inference that . . . the defendant intentionally discriminated against the plaintiff.”

In this instance the court assumed, without deciding, that Haughton met his prima facie burden. However, the Circuit Court held that the Town met its burden in demonstrating a legitimate, non-discriminatory reason for its assignment decision and Haughton failed to demonstrate that reasons offered by the Town in support of its decision "was merely pretext."

Haughton failed to identify admissible evidence that would permit a jury to find that the Town acted with discriminatory intent when it chose to promote another officer instead of Haughton to Detective and employers are entitled to set their own legitimate, nondiscriminatory requirements for open positions.

The decision is posted on the Internet at:

https://www.courtlistener.com/opinion/4529422/haughton-v-town-of-cromwell/

Duty of fair representation

Duty of fair representation

Staten v Patrolmen’s Benevolent Ass’n.,  et al, USCA, Second Circuit, Docket 17-3764

In this action Claude A. Staten, pro se, sued his union, the Patrolmens’ Benevolent Association [PBA] for breach of contract, violation of the duty of fair representation, and discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The district court dismissed Staten’s complaint for failure to state a claim. The Circuit Court, sustaining the lower court's ruling, said the district court had correctly dismissed Staten’s breach of contract claim.

The Circuit Court explained that:

1. A union member may sue his union for breach of a collective bargaining agreement, citing United Steelworkers of Am., AFL-CIO-CLC v. Rawson , 495 U.S. 362;

2. The union member “must be able to point to language in the collective-bargaining agreement specifically indicating an intent to create obligations enforceable against the union by the individual employees; and

3. Staten failed to cite any language from the CBA that obligated the PBA to provide legal representation to him in his discrimination lawsuits against the police department.

The Circuit Court noted that Staten alleged that the PBA’s website listed "the legal benefits the PBA offered active-duty police officers" for his or her legal representation. However, as the district court observed, however, those benefits "do not include representation in affirmative discrimination suits against the police department."

Further, the district court had dismissed Staten’s duty of fair representation claim as untimely, noting that there is a six-month statute of limitations for duty of fair representation claims and the PBA had denied Staten's request for representation eleven months before he filed his initial complaint in federal district court.

Although Staten argued that the PBA’s actions "were part of a continuous violation and that his lawsuit was therefore timely," the Circuit Court pointed out that "the continuous violation doctrine, which permits a plaintiff to raise challenges to otherwise time-barred events because they are a part of a pattern of illegal activity, does not apply to duty of fair representation claims," citing Buttry v. Gen. Signal Corp., 68 F.3d 1488.

Another element noted in the decision was that Staten’s Title VII claims ran afoul of a failure to exhaust administrative remedies as "[b]efore a plaintiff can file a federal court complaint under Title VII, he [or she] must exhaust his [or her] administrative remedies by filing a charge with the EEOC and receiving a right-to-sue letter.  Apparently Staten failed to obtain a right-to-sue letter before filing his original and amended complaints.

The decision is posted on the Internet at: http://www.ca2.uscourts.gov/decisions/isysquery/6d5f1df6-ca6c-4372-9e16-1954ef0e5b03/6/doc/17-3764_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6d5f1df6-ca6c-4372-9e16-1954ef0e5b03/6/hilite/