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/

An application for retroactive membership in a retirement system must be supported by substantial evidence

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

Sears v DiNapoli, 2018 NY Slip Op 08610, Appellate Division, Third Department

§803.a of the Retirement and Social Security Law [RSSL] addresses processing applications for retroactive membership in a public retirement system of New York State and provides, in pertinent part, that "A public retirement system shall have the authority to grant relief from a failure to file an application for membership in that system in connection with service rendered prior to April first, nineteen hundred ninety-three in accordance with the provisions of this [§803]."

Patricia Sears, a permanent employee of the Department of Taxation and Finance from November 1977 until her retirement in July 2015 was enrolled in ERS as a Tier 3 member. Prior thereto her permanent appointment in 1977, Sears had been employed by Tax and Finance as a seasonal employment on two occasions, initially from March 4, 1976 to June 30, 1976 and then again from January 6, 1977 until September 16, 1977. Prior to the commencement of her second temporary period of employment with Tax and Finance Sears signed a waiver dated December 28, 1976 acknowledging her right to join the Retirement System and elected not to do so.*

After RSSL §803 was enacted in 1993, Sears sought, but was denied, retroactive Tier 2 membership in ERS. Shortly before Sears retired in July 2015, she again sought to have her ERS membership in Tier 3 changed to a Tier 2 membership. Although ERS again denied Sears' request for Tier 2 membership, Sears challenged the decision via an administrative hearing and the Hearing Officer recommended Sears' application for retroactive Tier 2 membership be granted. The Comptroller rejected the Hearing Officer's recommendation and Sears filed an Article 78 petition challenging the Comptroller's determination.

The Appellate Division said the ERS conceded, and its review of the record confirms, that the underlying determination denying Sears' application to Tier 2 membership in ERS was not supported by substantial evidence. In words of the court, "As the Hearing Officer aptly observed, the waiver signed by [Sears] in December 1976 cannot be applied retroactively to encompass [Sears'] initial period of seasonal employment from March 1976 to June 1976, and Sears testified without contradiction that she was neither offered an opportunity to join nor declined membership in the Retirement System at that time."

The court explained that there was no information in Sears' personnel file regarding her membership options or opportunities when she was first hired in 1976, nor were there any current employees who could attest to the membership notification procedures that were in place when Sears was initially employed by Tax and Finance. Further, said the court, the documentary proof offered at the hearing was insufficient to establish, among other things, that Sears participated in a procedure that a reasonable person would recognize as an opportunity to join or decline membership in the Retirement System.

Accordingly, the Appellate Division annulled the Comptroller's determination, granted Sears application for retroactive Tier 2 status in ERS and remitted the matter to ERS "further proceedings not inconsistent with this Court's decision."

In contrast, in Schuyler v New York State and Local Employees' Retirement System, 158 AD3d 909, the Appellate Division ruled that a "lack of documentation, coupled with information suggesting that petitioner's services were performed as an independent contractor rather than a state employee, supports the Comptroller's denial of petitioner's request for additional service credit." 

* Frequently employees, other than employees in the Labor Class, eligible for membership in ERS but not required to become a member, declined becoming a member in order to avoid being required to make employee contributions to ERS and participating in Social Security [Federal Insurance Contributions Act (FICA)]. Employees in the Labor Class were required to participate in Social Security regardless of their membership in ERS.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08610.htm

Historical Note: Eligibility to participate in Social Security was made available to public employees of the State of New York pursuant to an agreement between the State and the Social Security Administration as authorized by §1 of Chapter 619 of the Laws of 1953. Members of a public retirement system in service prior to the effective date of the agreement decline to participate in Social Security. As to such individuals wishing to participate in Social Security, the employee could elect to either (a) pay the employee contributions for Social Security in addition to paying the required employee contributions for his or her membership in the retirement system or (b) elect to apply his or her required employee contributions for participation in the retirement system towards paying for his or her required employee contributions for his or her participation in Social Security.

Court address claims of breach of contract, negligent termination and defamation alleged by educator

Court address claims of breach of contract, negligent termination and defamation alleged by educator

Williams v. Buffalo Board of Education, et al, USCA, Second Circuit, Docket #17-3483-cv

Dr. Yamilette Williams, a school administrator, appealed a federal district court's ruling sustaining the Buffalo Board of Education's decision to terminate her from her position. Among the issues addressed by the Circuit Court of Appeals were Dr. Williams' claims concerning the Board's alleged breach of her contract resulting in her alleged negligent termination, and Dr. Williams' allegation that she was defamed by a member of the Board.

Breach of Contract

Addressing the alleged Breach of Contract, the court said that to plead a breach of contract claim under New York law, the plaintiff must allege (1) the existence of a contract; (2) his or her performance under the contract; (3) the defendants’ breach of the contract; and (4) damages.

Under New York law, said the court, "[t]he fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent.” A contract is the best source of the parties’ intent and “if an agreement is ‘complete, clear and unambiguous on its face[, it] must be enforced according to the plain meaning of its terms.’”

A district court may dismiss a breach of contract claim at the pleadings stage “only if the terms of the contract are unambiguous ... Whether or not a writing is ambiguous is a question of law to be resolved by the courts."

Negligent Termination

With respect to Dr. Williams' claims of having been subjected to "Negligent Termination," the Circuit Court indicated that "It appears that New York courts do not recognize such a claim."

The court then opined that even if such a claim existed under New York Law, Williams’s relationship with the District was governed by contract, and the well-established rule is that "a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated," citing Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382.

Defamation

Finally, with respect to the claims advanced by Dr. Williams' alleging that she had been defamed by a member of the Board, the Circuit Court observed that defamation involves “the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in the minds of right-thinking persons, and to deprive him [or her] of their friendly intercourse in society.”

The elements of a defamation claim are "a false statement that is negligently, at minimum, causes harm, unless the statement is per se* defamatory" and only false statements of fact are subject to a defamation action. In contrast, said the court, "expressions of opinion are deemed privileged."

In the words of the court, "Determining whether a statement is one of fact or opinion requires consideration of several factors, including "the full context of the communication in which the statement appears ... whether the specific language in issue has a precise meaning which is readily understood and whether the statements are capable of being proven true or false.”

The Circuit Court also noted that “In an action for libel or slander, the particular words complained of shall be set forth in the complaint." In addition, the complaint also must specify “the time, manner and persons to whom the publications were made.”

The court then affirmed the district court's with respect to its dismissal of the issues alleging negligent termination and defamation.

The Circuit Court, however, remanded Williams’s breach of contact claim to the district court for its further consideration, explaining that given the present record, "it was error" for district court to conclude that Williams failed to satisfy a contractual provision obligating her to maintain professional certifications required by the Department of Civil Service or Department of Education, thereby obviating its finding that the Board did not violate the contract by terminating her.

* Court typically view "uttering a false and injurious statement" concerning an individual's sexual morality, he or she being guilty of a crime or being incompetent in his or her profession or trade as libel or slander per se. 

The decision is posted on the Internet at:

https://www.courtlistener.com/pdf/2018/12/12/williams_v._buffalo_board_of_education.pdf

Commissioner of Education lacks jurisdiction to consider appeals involving acts or omissions of post-secondary education institutions

Commissioner of Education lacks jurisdiction to consider appeals involving acts or omissions of post-secondary education institutions

Appeal of Diana Marie Van Vleet, Decisions of the Commissioner of Education, Decision No. 17,538

Diana Marie Van Vleet appealed an action of Molloy College, an institution of post-secondary education concerning Ms. Van Vleet's being given a failing grade in a course. 

The record before the Commissioner of Education indicated that at the time of the events described in this appeal, Ms. Van Vleet was enrolled as a student at Molloy College and here presents claims against Molloy College and several of its officers and employees asserting that she was improperly given a failing grade in one of her courses. 

The Commissioner said that Ms. Van Vleet's appeal must be dismissed as outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310.  The pertinent portion of Education Law §310 reads as follows:

"Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article. The petition may be made in consequence of any action: 7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools."

In the words of the Commissioner, "[t]his grant of jurisdiction does not extend to acts or omissions of institutions of post-secondary education. The Commissioner explained that while the language of Education Law §310(7) “could literally, and if it stood alone, embrace much more than the common school classifications of the first six subdivisions, " the text do not stand alone and are "circumscribed and modified by the contextual words which precede and follow them.”

Citing Bd. of Educ. of City Sch. Dist. of City of Rome v. Ambach, 118 AD2d 932 and Application of Bowen, 17 AD2d 12, aff’d 13 NY2d 663, the Commissioner said courts have held that “the statute deals throughout with the common schools and, inferentially, ... it does not invest the Commissioner with carte blanche appellate jurisdiction in all controversies involving the Education Law,” the Commissioner dismissed Ms. Van Vleet's appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17538

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