Unemployment insurance benefits unavailable to claimant found to have engaged in disqualifying misconduct

§75 of the Civil Service Law permits the appointing authority to place an officer or an employee served with disciplinary charges on leave without pay for up to 30-days pending the completion of the disciplinary hearing and the determination of the penalty to be imposed in the event the officer or the employee is found guilty of one or more of the charges and specifications filed against him or her.* This absence is deemed "disqualifying misconduct" for the purposed of eligibility for unemployment benefits associated with such absence and thereafter.

An individual [Claimant] employed by a municipality was alleged to have committed numerous violations of her employer's code of conduct by, among other things, failing to report to work on time, being absent without authorization, sleeping and lounging during her shift and refusing to comply with her supervisor's directives. 

The employer placed Claimant on a 30-day suspension without pay and served Claimant with disciplinary charges pursuant to Civil Service Law §75. The penalty proposed by the employer: Termination.

Claimant applied for unemployment insurance benefits during the period of her 30-day suspension without pay. The Department of Labor initially granted her application but subsequently issued a revised determination finding, among other things, that Claimant was not eligible to receive benefits during this time period "because she had engaged in disqualifying misconduct."

Following a hearing, an Unemployment Administrative Law Judge upheld the Department of Labor's revised determination that found Claimant ineligible for benefits because of her disqualifying misconduct and ruled, among other things, that due to Claimant's misconduct, the remuneration paid to her prior to the effective date of her  suspension without pay could not be used to establish a valid original claim for unemployment insurance benefits.** The Unemployment Insurance Appeal Board sustained the Administrative Law Judge's decision in this regard, and Claimant appealed the Board's decision.

The Appellate Division affirmed the Board's ruling. The court noted that a claimant's excessive tardiness, absenteeism and insubordination has been found to constitute disqualifying misconduct for the purpose of determining an individual's eligibility for unemployment insurance benefits. Further, said the court,  "The many instances of [Claimant's] problematic behavior and failure to abide by the employer's code of conduct are well supported by the record."

The court noted that while Claimant admitted to certain acts of misconduct, with respect to her alleged "sleeping during her shift" Claimant contended that she suffers from a disability that interfered with her ability to work during her night shift. However, noted the Appellate Division, Claimant failed to produce medical proof at the hearing to substantiate this claim.

The Appellate Division concluded that substantial evidence supported the Board's decision finding that the remuneration paid to Claimant prior to her placement on a 30-day suspension without pay could not be used to establish a valid original claim.

* In the event an officer or employee is found not guilty of all charges and specifications he or she is reinstated to the position with back salary and benefits. In the event the officer or employee is found guilty, the time during which an officer or employee was suspended without pay may be considered as part of the penalty.

** Claimant was still employed by the employer on the date her Unemployment Insurance hearing was conducted  as the disciplinary action being taken against her pursuant to Civil Service Law §75 was then still pending. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01880.htm

Disregarding unrebutted medical evidence in the record supporting an application for accidental disability retirement benefits fatal to the Medical Board and the Board of Trustees rejecting the application

Petitioner's application for accident disability retirement (ADR) benefits was rejected by both the Medical Board and the Board of Trustees. The Appellate Division unanimously annulled these decisions, on the law, and the matter remanded for further proceedings.

Petitioner, said the Appellate Division, had met his burden in establishing that he was entitled to ADR benefits by presenting:

 [1] the reports of his treating physicians, including the surgeon who performed his spinal surgery;

[2] the line-of-duty (LOD) accident reports indicating neck and back injuries;

[3] the contemporaneous emergency room reports also documenting neck and back pain; and

[4] MRIs from 2010 and 2011 revealing disc herniation, disc degeneration, and stenosis.

The medical evidence in the record, said the court, showed that Petitioner suffered from chronic back pain as a result of LOD injuries, in particular those sustained during a LOD accident that occurred in 2008.

The Board of Trustees' finding that Petitioner's 2008 accident was not causally related to his disability was based on a two-year gap in Petitioner's treatment, during which time he had returned to full duty. The Appellate Division found that this decision by the Board of Trustees "was conclusory" in light of the medical evidence in the record and  "[b]oth the Medical Board and the Board of Trustees failed to refute the opinion of Petitioner's surgeon that Petitioner's condition, which necessitated surgical intervention, was the result of his LOD injuries."

While the Medical Board was free to come to any conclusion supported by medical evidence before it, the court ruled that the board could not disregard the only competent evidence on the issue before it and its failure to refute the opinion of Petitioner's surgeon that Petitioner's condition was the result of his LOD injuries required that the Board's determination be vacated.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02028.htm

Individuals serving a public entity as independent contractors are not eligible for member service credit in a New York State public retirement system

Petitioner, a member of the New York State and Local Employees' Retirement System [NYSERS], applied for retirement service credit attributed to his alleged employment by Nassau County for a period running from October 15, 1974 to December 19, 1976. His application was rejected. After a hearing, the Hearing Officer found that Petitioner had not established his entitlement to additional member service credit in NYSERS. The Comptroller adopted the Hearing Officer's findings of fact and conclusions of law and Petitioner appealed the Comptroller's determination.

The Appellate Division confirmed the Comptroller's ruling. Citing Matter of DeLuca v New York State & Local Employees' Retirement Sys., 48 AD3d 876, the Appellate Division explained that "[I]t is the Comptroller's duty to determine retirement service credits and his determination will be upheld by this Court if rational and supported by substantial evidence" and it is the claimant's burden to show that he or she is entitled to additional retirement member service credit.

According to the decision, Petitioner had testified that [1] he did work for and was issued checks by Nassau County during the relevant period;* [2] he worked under contract for the now-defunct Tri-State Planning Commission;** and [3] Nassau County was reimbursed through the Commission "for much of the money paid to him."

Although Petitioner "did not recall the exact terms of his relationship with the Commission," the Appellate Division reported that there were indications that the relationship was not one of employer and employee, e.g., [1] Social Security records indicating that Petitioner's 1974-1976 income came from self-employment and [2] Petitioner had previously characterized his work during the relevant period of time as that of an independent contractor.***

These element, said the court, demonstrated that Petitioner was not "on the payroll of a participating employer during the time in question" and constitutes substantial evidence for the Comptroller's decision denying Petitioner the additional member service credit with NYSERS he sought, notwithstanding evidence that might support a different result.

* In addition, Petitioner testified that FICA payroll taxes were not deducted from the checks he received for his service and that he was not on the County payroll.

** The Tri-State Regional Planning Commission was the conduit for a total of about $3 billion in Federal aid to counties and municipalities in New York, New Jersey and Connecticut for more than 20 years and was discontinued in 1982.

*** For additional information concerning the legal status of independent contractors go to:

https://publicpersonnellaw.blogspot.com/2016/02/distinguishing-between-employees-and.html

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01876.htm

Procedures required to be followed by an appointing authority seeking to place an employee on disability leave pursuant to Civil Service Law §72 involuntarily

The basics with respect to placing an employee on ordinary disability leave pursuant to §72 of the Civil Service Law* involuntarily, except where the appointing authority determines that the individual's continued presence at the job site constitutes a danger to the individual or to his or her coworkers or agency clients within the meaning of §72.5 of the Civil Service Law, are as follows:

1. An employee may not involuntarily be place on leave pursuant to §72.1 of the Civil Service Law by an appointing authority until employee has been first examined by a physician designated by the State Department of Civil Service or the municipal civil service commission having jurisdiction;

2. In the event the physician certifies that the individual is unable to perform the duties of his or her position and the appointing authority decides to place the individual on §72.1 leave, the employee must be notified of this decision and of his or her right to appeal the determination before being placed on such leave and,  except as permitted by Section 72.5, the appointing authority may not place the individual on leave pursuant to §72.1 leave until a final determination is made by the appointing authority; and

3. An individual placed on leave pursuant to §72.1 has the right to appeal the appointing authority's "final determination" placing him or her of such leave to the "civil service commission having jurisdiction."

In contrast, in the event the appointing authority deems the employee's continued presence at the job site to be an immediate danger to the individual or to his or her coworkers or agency clients, the employee may be placed involuntarily on disability leave immediately pursuant to §72.5 of the Civil Service Law.

Section 72, however, places “the burden of proving an employee's mental or physical unfitness on the appointing authority alleging it.” To satisfy this burden, the appointing authority must prove, by a preponderance of the evidence, that:

(i) the employee suffers from a disability unrelated to an occupational injury or disease;

(ii) that she or he is unable to competently perform her or his job duties; and

(iii) his or her inability to so perform is caused by his or her disability.

The focus of the §72 proceeding is on “the employee’s current fitness and ability to perform his or her job duties, not on his or her past condition or work performance” and “[p]ast performance is relevant only to the extent that it is probative of employee’s present condition and future conduct."

In a §72 disability proceeding, while the opinions of medical experts can inform and aid the fact finder in reaching the his or her conclusion, the fact finder is not required to accept the opinions or conclusions of any given expert, but must weigh the evidence in the record and draw his or her own inferences. Weighing the evidence and resolving issues of credibility “is primarily the province of the designated hearing officer, who has had the opportunity to see and hear the witnesses.

The testimony of an expert witness is part of the proof to be considered by the hearing officer and the hearing officer may reject an expert’s opinion if he or she finds the facts to be different from those which form the basis for the expert's opinion.

Absent the employee being immediately place on an involuntary leave pursuant to §72.5 of the Civil Service Law, the employee is continued as an "active employee on the job" until the employee is determined by the appointing authority to be disabled with respect to he or she satisfactorily performing his or her duties of the position. In the event the appointing authority makes a final determination that finds the employee to be disable and unable to satisfactorily perform his or her duties and places the individual on leave pursuant to §72, the appointing authority shall advised the employee of the appointing authority's decision and of the fact that the employee has the right to appeal the appointing authority's decision to the civil service commission having jurisdiction in accordance with §72.3 of the Civil Service Law.**

In this action, adjudicated before the New York City Office of Administrative Trials and Hearings [OATH], the employee had been placed on "pre-trial involuntary leave" pursuant to §72.5 of the Civil Service Law based upon complaints that she failed to perform assigned tasks and engaged in disruptive behavior, including spraying a chemical substance in the air, playing loud music, and singing at her work station. The employee was subsequently examined by a psychiatrist who found her unfit to perform the job due to a mental disability. The employee challenged the finding of medical expert that she was unfit to perform her duties and the need to place her on a "pre-trial involuntary leave."

As OATH Administrative Law Judge Astrid B. Gloade noted, the "complaints" recited by the appointing authority were not "pleading" and the fact that an employee committed the alleged acts "was not an element to be proven at the hearing.”  Rather the employee was diagnosed by the appointing authority's medical expert as having a "delusional disorder" that adversely affected her performance of her duties and the appointing authority was required to prove such "cause and effect."

Explaining that the medical expert's diagnosis introduced by the appointing authority was, in the opinion of the Administrative Law Judge, "unreliable," Judge Gloade observed that even if the appointing authority's evidence satisfied the first prong of its burden, the appointing authority failed to establish a causal connection between the "diagnosed delusional disorder" and employee’s inability to perform her job. In the words of the ALJ, "The fact that an employee may have a psychiatric disorder does not establish that she [or he] is unable to perform the duties of her [or his] position."

With respect to the employee's alleged failed to perform assigned tasks and engaged in alleged disruptive behavior at her work station, the ALJ said that this simply served as written notice of the facts upon which the appointing authority based its determination that the employee is not fit to perform her duties and forms the basis for having the employee medically evaluated.

Turning to the employee having being placed on "Pre-Hearing Suspension" pursuant to §72.5 of the Civil Service Law, the ALJ explained that by having placed employee on an "emergency leave prior to the trial," the appointing authority must further establish that the standard authorizing place the employee on leave under color of §72.5 was satisfied.

§72.5 permits the placement of the employee on involuntary "emergency leave" prior to a hearing only in situations where the agency has probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with agency operations.

Following a three-day hearing, ALJ Gloade found that the appointing authority  did not prove that the employee was currently unfit to perform her duties or that there was a sufficient basis to place her on "pre-trial involuntary leave." The doctor’s report and testimony, said the ALJ, failed to provide the basis for her conclusion that the employee suffers from a mental disability which precludes her from performing her duties.

Addressing the employee's placement on involuntary pre-trial leave, §72.5 allows such leave only in emergency situations where the agency has probable cause to believe the employee’s continued presence on the job represents a potential danger to persons or property or would severely interfere with operations. Here, said the ALJ, the agency did not prove either justification. Judge Gloade opined that in this instance the standard that would justify placing the employee involuntarily on §72.5 was not met, noting that placing an employee in an involuntary emergency leave status is an “extraordinary measure,” due in part to the financial hardship to the employee because there is no limit to the length of such leave.***

Judge Gloade also noted that the appointing authority failed to demonstrate that the agency had probable cause to believe that the employee was dangerous or that her presence in the workplace would “severely interfere with operations.”

Also noted was that the testimony at the hearing indicated that the staff became “very concerned” about the employee’s behavior during the two workdays preceding imposition of the involuntary leave on the employee and additional justification for her placement on leave pursuant to §72.5 were claims that the employee refused to review assigned cases, ignored her supervisor’s instructions, and kept clutter at her desk.

Such behavior, however, was ruled by the ALJ to be insufficient to establish that the employee posed a danger to herself or to others. Nor, said Judge Gloade, did the evidence demonstrate that the employee's behavior would “severely interfere” with the unit’s operations as no evidence was presented by the appointing authority that the employee's conduct during the relevant time period caused any significant disruption to the unit’s functioning sufficient to warrant that she be placed on an involuntary leave pursuant to §72.5.

In the words of the Administrative Law Judge, "In sum, [the appointing authority] lacked probable cause to believe that an emergency leave was warranted between April 26, 2018, and May 29, 2018," and thus the employee was entitled to reinstatement to her position to to the restoration of any lost salary or leave credits used during that period.

Accordingly, ALJ Gloade recommended the appointing authority's petition be dismissed and that the employee be reinstated to her position with back salary, if any was due her, and restoration of any leave accruals the employee used during the period of her pre-trial leave. 

* Employees suffering an occupational injury or disease as defined in the Workers' Compensation Law and are unable to perform the duties of their position are placed on what is commonly referred to as "Worker's Compensation Leave" pursuant to §71 of the Civil Service Law unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position. 

** The final determination of the civil service commission is binding on both the employee and the appointing authority. Either party, or both, however, may seek review of a final determination of a commission in accordance with the provisions of Article 78 of the Civil Practice Law and Rules.

*** Leave pursuant to §72 is "leave without pay" although an individual on such leave may elect use his or her "accrued leave credits" and other available leave credits until all such leave credits are exhausted in order to remain on the payroll. Further, in addition to involuntarily being placed on §72 leave by the appointing authority, when such an action is not initiated by the appointing authority an employee may request to placed on such leave, the approval of such a request to be granted at the discretion of the appointing authority.

N.B. A decision by the Second Circuit, Tooly v. Schwaller, 17‐3564‐cv, addressing  disability leave pursuant to §72 considered a defenses advanced by one of the defendants -- qualified immunity -- was handed down by the court on March 20, 2019. The text of the ruling is posted on the Internet at: http://www.ca2.uscourts.gov/decisions/isysquery/8e8a8a16-da14-4099-a4c4-311e44cc3be3/1/doc/17-3564_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8e8a8a16-da14-4099-a4c4-311e44cc3be3/1/hilite/

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-74.pdf

An employee serving a probationary period bears the burden of establishing that his or her "dismissal was due to causes unrelated to work performance and/or improperly motivated"

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation* and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

The New York State Office of Children and Family Services [OCFS] had appointed an individual [Probationer] to his position in December subject to his satisfactory completion of a one-year probationary period.** The following November OCFS terminated Probationer without notice and hearing.

Probationer then brought an action pursuant to CPLR Article 78 seeking, among other things, a court order annulling OCFS' decision to terminate his employment. OCFS filed its answer to Probationer's petition and Supreme Court ultimately granted OCFS' motion to dismiss Probationer's petition. Probationer appealed the Supreme Court's ruling.

The Appellate Division affirmed the lower court's decision, explaining "[a] probationary employee ... has no right to challenge his or her [timely] termination of [his or her probationary] employment absent a showing that the dismissal was done in bad faith or for an improper reason." Further, said the court, the probationary employee bears the burden of establishing that his or her "dismissal was due to causes unrelated to work performance and/or improperly motivated."

Further still, the record before the Appellate Division indicates Probationer violated certain policies of the OCFS facility at which he was serving and failed to document an incident when residents at the facility had engaged in prohibited activity and failed to counsel them after the incident. In addition, noted the court, Probationer was rated  unsatisfactory in four out of five categories in a performance evaluation.

The Appellate Division opined that such evidence of Probationer's unsatisfactory performance together with evidence of minor infractions committed by him, indicate that "his termination was made in good faith" and the fact that Probationer "received some favorable recommendations" does not constitute a showing of improper motivation or bad faith by OCFS in its decision to terminate Probationer's employment with it.

Concluding that Probationer "failed to tender sufficient evidence showing that his termination was due to improper reasons or done in bad faith," the Appellate Division ruled that Supreme Court correctly dismissed Probationer's petition.

* In contrast, should an appointing authority elect to terminate a probationary employee prior to the individual completing his or her minimum probationary period, the employee must be afforded “notice and hearing” in accordance with the terms of the controlling law or the relevant disciplinary procedure set out in a collective bargaining agreement. As the Court of Appeals held in York v McGuire, supra, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position.

** Typically an employee's probationary period is established at "not less than X months and not more than Y months. If no minimum probationary period is specified and the appointment is simply made subject to the satisfactory completion of the employee's probationary period the only window of opportunity for termination without initiating disciplinary action occurs at the end of the probationary period. As the Appellate Division characterized Probationer's appointment as being "subject to [satisfactory completion of] a one-year probationary period," presumably his probationary period fell within the ambit of 4 NYCRR 4.5(b)(1) by operation of law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01692.htm