As a general rule, the determination of whether a person is “qualified” should be made at the time of the alleged discriminatory employment action

As a general rule, the determination of whether a person is “qualified” should be made at the time of the alleged discriminatory employment action

Smith v. Town of Ramapo, USSC, Second Circuit, Docket 18-148-cv*

The single issue before the court in this appeal was whether Raymond K. Smith’s inability to perform the essential functions of his job at the time of the alleged discrimination forecloses his claim of discrimination under §102(a) of the Americans with Disability Act [ADA].   

Due to an injury Smith could no longer work as a police officer and Ramapo approved his disability status under New York General Municipal Law §207-c.** Smith alleged that Ramapo treated him differently than nondisabled officers in violation of the ADA.   

After qualifying for §207-c disability benefits, Smith was not permitted to use vacation days he had previously accrued when working as a police officer; and, while disabled, Smith was unable to accrue new vacation time or to take bereavement leave. The district court concluded that Smith failed to plead a necessary element of his ADA discrimination claim, namely that he was qualified to be a police officer at the time of the alleged discrimination. The Circuit Court agreed, explaining that one of the elements of a claim under the ADA is that an employee was "qualified to perform the essential functions of his job, with or without reasonable accommodation."

Smith’s injury, however, severely limited the use of his arm and shoulder and left him unable to engage in many daily activities and nowhere in his complaint did he claim that following his injury he could have performed the essential duties of a police officer, either with or without a reasonable accommodation. 

Citing Stevens v. Rite Aid Corp., 851 F.3d 224, the Circuit Court noted that where a disability renders an individual unable to perform the essential functions of the job, "that disability renders him or her unqualified.”

Thus Smith’s failure to plead that he was qualified to be a police officer is fatal to his claim. Although Smith cited Castellano v. City of New York, 142 F.3d 58, in contending he was "qualified' to be a police officer at the time he earned certain benefits, and that he is entitled to those benefits under the ADA regardless of his ability to serve as a police officer at the time of the discrimination, the court said that "Smith misreads Castellano, and his claim was properly dismissed," noting that Castellano hold that retired employees who were qualified to perform the essential functions of their jobs while employed remain entitled to receive post-employment benefits. The general rule, said the Circuit Court, is that the determination of whether a person is "qualified" should be made at the time of the discriminatory employment action and Castellano created a narrow exception to the rule for post-employment benefits intended to be used by retirees.   

In any event, the court indicated Smith’s claims were not about post-employment benefits, or any benefit used by a former employee., nor did he allege that he was ultimately deprive of the value of any previously accrued benefit, such as a payout for his accumulated vacation days.   

As the Castellano’s exception does not apply in Smith's situation and because Smith failed to plead that he was able to perform the essential duties of a police officer at the time of the alleged discrimination, the court ruled that he "failed to state a claim for disability discrimination."

Click here to Read a FREE excerpt from Disability Benefits for fire, police and other public sector personnel in New York State.

* The decision noted that it is a "Summary Order" and rulings by summary order do not have precedential effect.

** §207-c  provides for the payment of salary and medical expenses to a police officer who is injured in the performance of his or her official duties.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/5c82839c-7f0a-452f-8af6-8449599f621b/8/doc/18-148_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5c82839c-7f0a-452f-8af6-8449599f621b/8/hilite/

Determining the liability of a government entity for an alleged negligent performance of a governmental function

Determining the liability of a government entity for an alleged negligent performance of a governmental function

Wilson v New York City Bd. of Educ., 2018 NY Slip Op 08534, Appellate Division, Second Department

Judith Wilson, an elementary school principal, allegedly was injured when a 12-year-old student grabbed a cell phone from Wilson's hand. Wilson commenced this action to recover damages for personal injuries against the New York City Board of Education and the City of New York, [BOE] alleging that a school safety officer failed to adequately protect her. The critical issue to be determined in this action was the liability of the BOE for the injury suffered by Wilson. However, Supreme Court granted BOE's motion for summary judgment and Wilson appealed.

Sustaining the lower court ruling, the Appellate Division explained that a school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge in the absence of a special duty to the person injured. The court then indicated that there are three ways in which a special relationship with a municipal defendant can be formed with teachers, administrators, or other adults on or off school premises: 

(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons;

(2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or

(3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" 

The Appellate Division further explained that with respect to a special relationship based upon a duty voluntarily assumed by the municipality, such a relationship requires proof of the following four elements:

(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;

(2) knowledge on the part of the municipality's agents that inaction could lead to harm;

(3) some form of direct contact between the municipality's agents and the injured party; and

(4) that party's justifiable reliance on the municipality's affirmative undertaking.

In addition, said the court, the "assurance" by the municipal defendant must be definite enough to generate justifiable reliance by [Wilson]" citing Dinardo v City of New York, 13 NY3d 872.

Ruling that the Board of Education established, prima facie, that it did not owe Wilson a special duty and that Wilson failed to raise a triable issue of fact, the Appellate Division said it agreed with the Supreme Court's determination granting BOE's motion for summary judgment dismissing Wilson's complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08534.htm

NYS Assembly Speaker Heastie announces leadership positions and committee chairs for 2019 Legislative Session

NYS Assembly Speaker Heastie announces leadership positions and committee chairs for 2019 Legislative Session

Source: NYS Assembly Press Office Release

Speaker Carl E. Heastie

Majority Leader Crystal D. Peoples-Stokes

Chair, Ways and Means Helene E. Weinstein

Deputy Speaker Catherine Nolan

Assistant Speaker Félix W. Ortiz

Speaker Pro Tempore Jeffrion L. Aubry

Chair, Committee on Committees Vivian E. Cook

Assistant Speaker Pro Tempore N. Nick Perry

Deputy Majority Leader Phil Ramos

Assistant Majority Leader David F. Gantt

Majority Whip William Colton

Deputy Majority Whip José Rivera

Assistant Majority Whip Michael Miller

Chair, Majority Conference Steven Otis

Vice Chair, Majority Conference Erik M. Dilan

Secretary, Majority Conference Rebecca A. Seawright

Chair, Majority Program Carmen E. Arroyo

Chair, Majority Steering Barbara Lifton

Vice Chair, Majority Steering John T. McDonald III

Chair, House Operations Ron Kim

Chair, Puerto Rican/Hispanic Task Force Maritza Davila

STANDING COMMITTEES

Chair, Aging Harry B. Bronson

Chair, Agriculture Donna A. Lupardo

Chair, Alcoholism & Drug Abuse Linda B. Rosenthal

Chair, Banks Kenneth Zebrowski

Chair, Children & Families Ellen Jaffee

Chair, Cities Edward C. Braunstein

Chair, Codes Joseph R. Lentol

Chair, Consumer Affairs Michael G. DenDekker

Chair, Corporations, Authorities & Commissions Amy Paulin

Chair, Correction David I. Weprin

Chair, Economic Development Robin Schimminger

Chair, Education Michael Benedetto

Chair, Election Law Charles D. Lavine

Chair, Energy Michael Cusick

Chair, Environmental Conservation Steve Englebright

Chair, Ethics & Guidance Aravella Simotas

Chair, Governmental Employees Peter J. Abbate, Jr.

Chair, Governmental Operations Michele R. Titus

Chair, Health Richard N. Gottfried

Chair, Higher Education Deborah J. Glick

Chair, Housing Steven Cymbrowitz

Chair, Insurance Kevin A. Cahill

Chair, Judiciary Jeffrey Dinowitz

Chair, Labor Marcos A. Crespo

Chair, Libraries & Education Technology Sean Ryan

Chair, Local Governments Fred W. Thiele, Jr.

Chair, Mental Health Aileen M. Gunther

Chair, Oversight, Analysis & Investigations Thomas J. Abinanti

Chair, Racing & Wagering J. Gary Pretlow

Chair, Real Property Taxation Sandy Galef

Chair, Small Business Al Stirpe

Chair, Social Services Andrew Hevesi

Chair, Tourism Daniel J. O'Donnell

Chair, Transportation William B. Magnarelli

Chair, Veterans Affairs Didi Barrett

TASK FORCES & LEGISLATIVE COMMISSIONS

Chair, Administrative Regulations Review Dan Quart

Chair, Farm, Food & Nutrition Michaelle C. Solages

Chair, Government Administration David Buchwald

Chair, New Americans Victor M. Pichardo

Chair, People with Disabilities Phil Steck

Chair, Reapportionment Robert J. Rodriguez

Chair, Rural Resources Angelo Santabarbara

Chair, Science & Technology Patricia Fahy

Chair, Skills Development & Career Education Walter T. Mosley

Chair, State-Federal Relations Nily Rozic

Chair, Women's Issues Latrice Walker

Correcting errors made in determining an individual's retirement allowance even after benefits are awarded

Correcting errors made in determining an individual's retirement allowance even after benefits are awarded

Smith v DiNapoli, 2018 NY Slip Op 08606, Appellate Division, Third Department

A one-time, 30-day overtime pay earned in the last year of a member's employment is excluded from the member's final average salary calculation as such payments are deemed "termination pay" within the meaning of  §302(9)(d) of the Retirement and Social Security Law [RSSL].

A member [Retiree] of the New York State and Local Retirement System [ERS] retired in August 1998 and commenced receiving his retirement pension. In 2012, ERS notified Retiree that it had reviewed the calculation of his final average salary used to compute his retirement benefits and determined that his one-time, 30-day overtime pay earned in the last year of his employment should have been excluded from the final average salary as mandated by §302(9)(d). Retiree challenge the determination but the Comptroller adopted a Hearing Officer decision that the 30-day overtime payment was properly excluded from Retiree's final average salary as it constituted termination pay and compensation in anticipation of retirement and, as such, was not includable pursuant to RSSL §431(2) and (3). Retiree then appealed the Comptroller's decision.

Citing Matter of Chichester v DiNapoli, 108 AD3d. The Appellate Division confirmed the Comptroller's decision 924, the court explained that "[T]he Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld — even if other evidence in the record could support a contrary result."

As relevant here, Retiree's "final average salary" was defined as "the regular compensation earned from [the] employer during the twelve months of actual service immediately preceding the date of [retiree's] retirement," with certain exclusions permitted pursuant to RSSL §302[9][d]. This, said the Appellate Division was "In order to avoid the artificial inflation of that figure." In computing retirement benefits the base salary excludes, as pertinent here, "any form of termination pay" and "any additional compensation paid in anticipation of retirement."

Significantly, observed the court, "the determination of what constitutes termination pay or compensation in anticipation of retirement requires that we 'look to the substance of the transaction and not to what the parties may label it.'" As substantial evidence supported the Comptroller's determination that the payment for 30 days of overtime in retiree's final year of service is excludable in arriving at his final average salary, as it constituted a form of termination pay and compensation in anticipation of retirement.

In this instance the relevant employment contract provided that Retiree and certain other employees were required to work overtime without additional compensation until their final year of service, when they could accumulate and were paid for overtime actually earned upon their retirement, such overtime pay "restricted to one-time, one[-]year maximum of 30 days." Retiree conceded that this was taken in the final year to boost his retirement benefits.

Under these circumstances, the Appellate Division held that the Comptroller rationally excluded such sums from retiree's final average salary and corresponding retirement benefit calculation.

Retiree had contended that General Municipal Law §90 provides a basis upon which to permit the inclusion of overtime pay in his final average salary for purposes of calculating his retirement benefits. The court, noting that §90 permits the governing board of a political subdivision of the state to adopt an ordinance, local law, resolution or rule providing for the payment of overtime compensation to public officers and employees, and mandates that such payments be considered as salary or compensation for "the purposes of any pension or retirement system," this statute, which is strictly construed, requires that, for overtime payments to be considered as salary, they must be paid pursuant to "an overtime plan [adopted by the governing board] setting forth in detail the terms, conditions and remuneration for such employment."

As the overtime payment to Retiree was not made pursuant to such an ordinance or resolution adopted by the City Council., his reliance on a 1994 adopted by the City Council was "unavailing." That resolution indicated that the City Council had entered into a memorandum agreement with the police union regarding a labor relations contract, although neither document was provided. Further, observed the court, the resolution "merely authorized the mayor to enter into a labor agreement" with certain employees in the police department but there is no indication that the attached labor relations agreement entered into with Retiree and other nonunion employees — which restricted overtime to a "one-time, one[-]year maximum of 30 days" of overtime and contained no details — was ever approved by the City Council. Indeed, said the Appellate Division, that agreement expressly stated that it was "subject to approval by the City Council."

Finally, the Appellate Division rejected Retiree's argument that the Comptroller is estopped* from correcting the error due to the passage of time. Rather, said the court, "[T]he Comptroller is statutorily required to correct errors in the retirement benefits records and adjust payments accordingly to ensure the integrity of the public retirement system,"** citing Matter of Mowry v DiNapoli, 111 AD3d 1117 and RSSL §111 [c]). Indeed, said the court, noting the decision in Matter of Schwartfigure v Hartnett, 83 NY2d 296, the Comptroller's duty to correct errors is ongoing, and continues even after benefits are awarded and includes the right to recoup overpayments.

* As a general rule, estoppel may not be invoked against the state or its agencies absent a "showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon."

** It is assumed that this duty extends to correcting errors that resulted in a retiree receiving less that the amount to which he or she was entitled.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08606.htm

The employer's annual reviewing and approving requests for the assignment an agency vehicle to an employee does not create a past practice

The employer's annual reviewing and approving requests for the assignment an agency vehicle to an employee does not create a past practice

Spence v New York State Dept. of Transp., 2018 NY Slip Op 08594, Appellate Division, Third Department

Certain employees serving with Department of Transportation [DOT] were assigned state-owned vehicles for work and, in some instances, several employees seeking to use the vehicle for commuting as well as for work was authorized.

Wayne Spence, as President of the New York State Public Employees Federation [Petitioner] filed an improper practice charge with Public Employment Relations Board [PERB] alleging that DOT violated the Taylor Law when it unilaterally discontinued providing state-owned vehicles to some of the employees that had submitted a request seeking be assigned a DOT vehicle . After a hearing, an Administrative Law Judge found that DOT's action constituted a violation of the Taylor Law.

DOT appealed and PERB reversed the Administrative Law Judge's decision. PERB, concluding that because DOT retained the discretion to annually review whether employees should be assigned a state-owned vehicle, such employees could not have a reasonable expectation that they would always be provided one.

Petitioner next files an Article 78 petition with Supreme Court seeking a court order annulling PERB's determination. Ultimately the matter was transferred to the Appellate Division.

The Appellate Division found that:

1. The Taylor Law requires all public employers and employee organizations to negotiate in good faith to determine the terms and conditions of employment of employees in the negotiating unit.

2. Where PERB's determination is made after an administrative hearing, such determination must be supported by substantial evidence.

The court found that the record revealed that DOT's assignment of state-owned vehicles to DOT employees was governed by various criteria set out in a manual that had to be met in order for a state-owned vehicle to be assigned. In addition, the manual required the employee seeking to be assigned a state-owned vehicle to submit a "Form EM-30" and justify his or her need for the state-owned vehicle and its use annually.

PERB concluded that "a past practice of assigning state-owned vehicles with commuting privileges did not exist." In this regard, PERB found that the employees had to annually request such vehicle pursuant to a DOT policy and that DOT retained the discretion to approve or deny such request and, therefore, the employees could not reasonably expect to be assigned a vehicle.

The Appellate Division found that PERB's determination was supported by substantial evidence in the record and although the vehicle requests were routinely approved, that fact did not create a past practice nor divest DOT of its right to exercise its discretion in granting or denying the requests or the use of the vehicle for commuting to and from work.

Citing State of New York Dept. of Correctional Servs. v Kinsella, 220 AD2d 19, the court held that "because PERB's determination is supported by substantial evidence, it will not be disturbed notwithstanding the fact that the record contains evidence that would support a contrary result."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08594.htm