Disciplinary charges filed against an Emergency Medical Technician alleging failure to render appropriate patient care dismissed

An Emergency Medical Technician [“EMT”] was charged with failure to render appropriate patient care by accepting a refusal of medical aid from a patient with unclear decisional capacity, making false statements and walking the patient home. The EMT responded to a restaurant based on a report that a woman had fallen backwards off a stool and hit her head. 

Office of Administrative Trials and Hearings Administrative Law Judge Susan J. Pogoda found the Fire Department failed to prove the charges and credited the EMT’s testimony that the patient had the decisional capacity to refuse medical attention, that a full trauma assessment of the patient was conducted not once but twice; the patient showed no signs of any injury from a fall; she was not intoxicated or impaired; her vital signs were normal and she understood her options and knowingly refused medical attention.

ALJ Pogoda also found the EMT’s decision to walk the patient home did not rise to the level of misconduct and recommended that all the charges be dismissed. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1090.pdf

Bargaining away an appointing authority's right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons

The City and the Association entered into a collective bargaining agreement [CBA] for a term running from January 1, 2004 to December 31, 2007*. The CBA included provisions that, among other things, prohibited layoffs, required minimum staffing levels of 36 firefighters and obligated the City to fill vacancies to maintain the agreed-upon minimum staffing levels. The CBA also provided for resolution of disputes concerning the interpretation, application or claimed violation of any provision of the CBA pursuant to a series of steps, culminating in arbitration before the Public Employment Relations Board if the parties were to reach a stalemate.

In 2010, a firefighter resigned, reducing the total number of firefighters employed by the City  to 35. When the City  did not immediately fill the vacant position, the Association filed a grievance. In June 2011, after the parties completed the specified grievance procedure, they negotiated a resolution prior to arbitration by entering into a memorandum of agreement (hereinafter the MOA), which provided that, where "separation of an employee results in [the City  employing] less than 36 firefighters, [the City ] shall have 45 days to hire a replacement." The MOA further provided that, if the City  failed to timely fill any such vacancy, it would replace the position utilizing the non-emergency call-in procedure.

In June 2017, a firefighter retired, again reducing the number of firefighters employed by the City  to 35. The City  refused to fill the vacant position, citing significant financial and budgetary constraints. As relevant here, after the grievances it filed with the City  were denied, the Association served a demand for arbitration.

The City  commenced this CPLR Article 75 proceeding seeking a court order to permanently stay arbitration. The Association answered and sought an order to compel arbitration. Supreme Court denied the City 's application and granted the Association's motion to compel. The City  appealed.

Referring to Matter of City of Plattsburgh [Plattsburgh Permanent Firemen's Assn.], ___ AD3d ___ [appeal No. 527791, decided herewith**], the Appellate Division said as it had noted in appeal No. 527791, the parties had entered into a MOA that supplements the provisions of the CBA that it had determined constitute a job security clause.

Accordingly, the court opined that the MOA is not arbitrable for the reasons it set forth in its decision in appeal No. 527791, observing that the MOA considered in its entirety, does not meet the "stringent test" necessary to establish that the City  "bargain[ed] away its right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons," citing Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d at 37.

Accordingly, the Appellate Division held that dispute is not arbitrable for reasons of public policy and [1] reversed Supreme Court's ruling, [2] granted the City's application to permanently stay arbitration and [3] denied the Association's motion to compel arbitration.

* The terms of the CBA continue in effect following the expiration of its term because the parties have not yet entered into a successor agreement (see Civil Service Law § 209-a [1] [e]).

** In a separate proceeding, Supreme Court granted Association's motion to compel arbitration of a dispute arising from the CBA regarding the City 's obligations to fill vacant firefighter positions. The City  has appealed from that order (see Matter of City of Plattsburgh [Plattsburgh Permanent Firemen's Assn.], ___ AD3d ___ [appeal No. 527791, which decision is set out in its entirety below. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05368.htm

Matter of City of Plattsburgh (Plattsburgh Permanent Firemen's Assn.)

2019 NY Slip Op 05367

Decided on July 3, 2019

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: July 3, 2019

527791 

In the Matter of the Arbitration between CITY OF PLATTSBURGH, Appellant, and PLATTSBURGHPERMANENT FIREMEN'S ASSOCIATION, Respondent.

Calendar Date: March 19, 2019 
Before: Lynch, J.P., Clark, Mulvey, Aarons and Rumsey, JJ. 

Coughlin & Gerhart, LLP, Binghamton(Robert H. McKertich of counsel), for appellant.

Satter Law Firm, Syracuse(Sarah E. Ruhlen of counsel), for respondent.

MEMORANDUM AND ORDER

Rumsey, J.

Appeal from an order of the Supreme Court (Powers, J.), entered June 7, 2018 in Clinton County, which, among other things, denied the City 's application pursuant to CPLR 7503 to permanently stay arbitration between the parties.

The City  and respondent, the local firefighters' union, entered into a collective bargaining agreement (hereinafter CBA) for a term running from January 1, 2004 to December 31, 2007 ^[FN1]. The CBA included provisions that, among other things, prohibited layoffs, required minimum staffing levels of 36 firefighters and obligated the City  to fill vacancies to maintain the agreed-upon minimum staffing levels. The CBA also provided for resolution of disputes concerning the interpretation, application or claimed violation of any provision of the CBA pursuant to a series of steps, culminating in arbitration before the Public Employment Relations Board if the parties were to reach a stalemate.

In June 2017, a firefighter retired, reducing the total number of firefighters employed by the City  to 35. The City  refused to fill the vacant position, citing significant financial and budgetary constraints. After the grievances it filed with the City  were denied, respondent served a demand for arbitration. The City  commenced this proceeding pursuant to CPLR article 75 to permanently stay arbitration and respondent answered and sought to compel arbitration. Supreme Court denied the City 's application, but granted respondent's motion to compel ^[FN2]. The City  appeals.

The City  contends that the provision of the CBA that requires it to employ at least 36 firefighters is a job security clause that violates public policy because it is not sufficiently explicit and, therefore, it may not be enforced through arbitration. Respondent counters that the clause is not a job security clause but, rather, a safety provision that may be enforced through arbitration. "The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance" (Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, 519 [2007] [internal quotation marks and citations omitted]). Arbitration must be stayed where the granting of any relief would violate public policy (see id.).

In that regard, "a purported 'job security clause' that is not explicit in its terms is violative of public policy, rendering it invalid and unenforceable" (Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d 32, 37 [2011]). The Court of Appeals has explained that the "requirement that 'job security' clauses meet this stringent test derives from the notion that before a municipality bargains away its right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons, the parties must explicitly agree that the municipality is doing so and the scope of the provision must evidence that intent. Absent compliance with these requirements, a municipality's budgetary decisions will be routinely challenged by employees, and its ability to abolish positions or terminate workers will be subject to the whim of arbitrators" (id. at 37-38). In light of the potentially drastic effects that a waiver of the right to adjust future staffing levels entails, a clause that addresses both job security and safety concerns is considered a job security clause that must meet this stringent test to be enforceable (see e.g. Matter of Burke v Bowen, 40 NY2d 264, 266-267 [1976]; cf. Matter of City of Watertown [Watertown Professional Firefighters Assn., Local 191], 169 AD3d 1396, 1397 [2019], lv denied 33 NY3d 904 [2019]; Matter of City of Lockport [Lockport Professional Firefighters Assn., Inc.], 141 AD3d 1085, 1087-1088 [2016]).

Article I, section 11 of the CBA governs scheduling and staffing levels. Subsection 1 requires a minimum staffing level of 36 firefighters, organized into four platoons of nine persons each. Notably, it further provides that "[n]o member of the bargaining unit will be laid off[, p]resent staffing levels above the minimum thirty-six (36) will only be reduced by attrition [and n]o member shall be laid off or fired unless it is the result of disciplinary action." Subsection 3 requires the City  to fill vacancies "as soon as possible" when staffing levels fall below the agreed-upon minimum. Although these provisions may relate to safety concerns, they also specifically address the issue of job security by mandating a minimum total staffing level and prohibiting layoffs. Thus, we agree with the City  that the disputed terms constitute a job security clause. However, our inquiry does not end there. We must also consider whether the disputed clause explicitly evinces an intent by the City  to bargain away its right to reduce the number of firefighters it employs for budgetary, economic or other reasons.

The clause at issue most closely resembles the clause considered by the Court of Appeals in Matter of Burke v Bowen (40 NY2d 264 [1976], supra), in which the parties agreed that the best interests of public safety regarding fire protection required that a minimum of 34 firefighters be employed and, further, that, upon any reconsideration of that issue, "in no event shall the presently agreed upon minimum be readjusted downward" (id. at 266)^[FN3]. The clause at issue requires the City  to fill vacancies as soon as possible to maintain "agreed upon" staffing levels, which, at the effective date of the contract, was 36 firefighters. However, the operative clause does not contain the explicit term precluding downward readjustment of that agreed-upon minimum level that was present in Matter of Burke v Bowen (supra). Rather, the clause at issue authorizes the City  to unilaterally eliminate equipment or close a station on 30 days' notice and requires that the parties bargain the impact of any such change. We conclude that this clause, considered in its entirety, does not meet the "stringent test" necessary to establish that the City  "bargain[ed] away its right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons" (Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d at 37). Accordingly, the dispute is not arbitrable for reasons of public policy. As such, Supreme Court's order is reversed.

Mulvey and Aarons, JJ., concur.

Clark, J. (concurring).

We agree with the majority that, although it may have also served to address work place safety concerns, the provision at issue in this case is a job security clause. Indeed, by setting a minimum staffing level and prohibiting layoffs and employment terminations for reasons other than disciplinary action, the provision ensured that, so long as the collective bargaining agreement was in effect, the municipal firefighters "need not fear being put out of a job" (Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, 275 [1976]; accord Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d 32, 39 [2011])^[FN4]. We write separately, however, because we believe that the majority has unnecessarily created a bright line rule — not borne out by the relevant case law — by stating that "a clause that addresses both job security and safety concerns is considered a job security clause." By making such a broad pronouncement, the majority has fashioned a blanket rule in which any clause that addresses job security, even tangentially, must automatically be subjected to the Court of Appeals' "stringent" test — that is, to be enforceable, it must be explicit in its terms, extend for "a 'reasonable period of time'" and not be "'negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power'" (Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d at 36-37, quoting Matter of Burke v Bowen, 40 NY2d 264, 266 [1976]). In our view, each clause should be evaluated independently to determine whether it is in fact a job security clause.

We agree with the majority in all other respects, including the determination that the job security clause violates public policy because it is not sufficiently explicit in its terms. Although not addressed by the majority, we note that the provision further violates public policy because, having been in effect since at least 2005, it has been extended for an unreasonable period of time (compare Matter of Burke v Bowen, 40 NY2d at 266-267; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d at 275-276). Thus, for the foregoing reasons, we concur with the majority that the parties' dispute is not arbitrable.

Lynch, J.P., concurs.

ORDERED that the order is reversed, without costs, the City 's application to permanently stay arbitration granted and respondent's motion to compel arbitration denied.

Footnotes

Footnote 1: The terms of the CBA continue in effect following the expiration of its term because the parties have not yet entered into a successor agreement (see Civil Service Law § 209-a [1] [e]).

Footnote 2: In a separate proceeding, Supreme Court granted respondent's motion to compel arbitration of a dispute arising from a memorandum of agreement, which also addresses the City 's obligations to fill vacant firefighter positions. The City  has appealed from that order (Matter of City of Plattsburgh[PlattsburghPermanent Firemen's Assn.], ___ AD3d ___ [appeal No. 527793, decided herewith]).

Footnote 3: On three other occasions the Court of Appeals considered whether a municipality had explicitly waived its right to discharge employees for budgetary reasons, concluding that a mere prohibition against layoffs was insufficient (see Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d at 38; Yonkers School Crossing Guard Union of Westchester Ch., CSEA v City of Yonkers, 39 NY2d 964, 965 [1976]) and finding sufficient language that specifically prohibited termination of an employee for budgetary reasons (see Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, 272 [1976]).

Footnote 4: In addition, the minimum number of firefighters required to operate the equipment per shift is less than the minimum staffing level set forth in the collective bargaining agreement.

Applying the doctrines of res judicata and collateral estoppel in administrative disciplinary actions

An Office of Mental Health [OMH] employee [Petitioner] was served with a notice of discipline [NOD] charging Petitioner with misconduct and, or, incompetency alleging that he struck and kicked a service recipient.*

Pursuant to the collective bargaining agreement between Petitioner's Collective Bargaining Organization and OMH, a disciplinary hearing was held before an arbitrator, during which hearing videos of the incident were shown. After the hearing, the arbitrator found that OMH failed to establish that Petitioner "either kicked or punched" the service recipient and concluded that the service recipient "was the sole aggressor during the ...  incident."

After the disciplinary hearing, Petitioner's requested New York StateJustice Center for the Protection of People With Special Need [Respondent] to amend report that was the basis for the disciplinary charges subsequently being filed against him to "unfounded and/or unsubstantiated" citing Social Services Law §494[1][a].** §494[1][a] provides for "Amendments to and appeals of substantiated reports of abuse or neglect.

Respondent denied Petitioner's request and untimely the matter was considered at a hearing before an Administrative Law Judge [ALJ].  The ALJ issued a recommended decision finding that Respondent had met its burden of establishing by a preponderance of the evidence that Petitioner  had committed the alleged physical abuse, finding that Petitioner had "pushed the service recipient, causing her to fall to the floor, and then he kicked her."

Respondent adopted the findings of the ALJ and denied Petitioner's request to amend the substantiated report. Petitioner then  commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order annulling Respondent's  decision. Petitioner contended that [1] the ALJ erred in failing to apply the doctrines of res judicata and collateral estoppel with respect to the arbitrator's determination in adjudicating the matter and [2] Respondent's determination was not supported by substantial evidence. Supreme Court transferred the matter to the Appellate Division.

The Appellate Division commenced its review of Petitioner's appeal by noting that the parties concur that "the doctrines of res judicata and collateral estoppel apply to arbitration awards and preclude subsequent litigation of a claim or issue decided in a prior arbitration against a party or those in privity."

In this Article 78 action the Appellate Division said that the dispute between Petitioner and Respondent "centers on whether there was an identical claim or issue decided in the arbitration decisive of the administrative proceeding before the ALJ." Petitioner contended that the arbitrator addressed whether his conduct throughout the underlying incident amounted to physical abuse of the service recipient while Respondent argued that the arbitrator only resolved whether Petitioner struck and/or kicked the service recipient after she fell on the floor, but not whether he pushed her to the floor in the first instance.

In support of its argument, Respondent contended that [1] the NOD did not specify that Petitioner pushed the service recipient; [2] the arbitrator never decided that aspect of the underlying incident, which [3] left the issue open for resolution at the hearing before the ALJ.

The Appellate Division rejected Respondent's "factual parsing of the incident" and concluded that the doctrines of res judicata and collateral estoppel precluded the ALJ from deciding again whether Petitioner's conduct amounted to physical abuse of the service recipient.

Citing D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, the court explained that the  underlying purpose of the doctrines of res judicata and collateral estoppel is to "prevent[] repetitious litigation of disputes which are essentially the same." The Appellate Division said that it found it significant that Respondent  issued its "Report of Substantiated Finding" — which included findings that Petitioner pushed, hit and/or kicked the service recipient — a week before OMH issued the NOD, which document referenced the case number from Respondent's report. Although there was no transcript of the arbitration, the court said that "certainly counsel for [Respondent], who [also had] represented OMH, was privy to the report."

The Appellate Division then opined that "[b]oth the report and the NOD specified that Petitioner's conduct amounted to 'physical abuse' pursuant to Social Services Law §493(4)(b), i.e., the claim was the same in the arbitration and in the administrative proceeding before the ALJ" conducted pursuant to §494[1][a] of the Social Services Law.

Indicating that the arbitrator reviewed the underlying event and determined that the service recipient fell to the floor and was the sole aggressor, the Appellate Division said it concluded that Respondent was precluded under principles of res judicata and collateral estoppel from relitigating the question of whether Petitioner physically abused the service recipient by pushing her to the floor in the course of the subsequent administrative hearing.

Thus, said the court "[i]t follows that [the] petition to annul Respondent's determination should be granted and the Respondent's determination annulled. Accordingly, the matter was remitted to Respondent for amendment of the findings to state that the report was unsubstantiated and for compliance with the requirements of Social Services Law §494.

* This conduct was also characterized as category three physical abuse within the meaning of Social Services Law §493(4)(c).

** Social Services Law §494[1][a] provides a means to process "Amendments to and appeals of substantiated reports of abuse or neglect.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05364.htm

Employee’s guilty "plea bargain" does not preclude the appointing authority from citing the criminal charges originally filed against the employee in an administrative disciplinary action

A firefighter [Respondent] was charged with violating the Fire Department’s substance policy after he was arrested for criminal possession and sale of a controlled substance. The Respondent requested that the disciplinary charge regarding sale of a controlled substance be dismissed because the criminal charges were resolved with a reduced plea of criminal possession.

Office of Administrative Trials and Hearings Administrative Law Judge Kara J. Miller found that Respondent’s guilty plea to a reduced criminal charge does not preclude the Department from charging Respondent and presenting evidence of the underlying criminal conduct that led to the arrest.

Judge Miller recommended that Respondent be terminated from his position as a firefighter after finding him guilty of both criminal possession and sale of a controlled substance. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-569.pdf

Litigating allegations of same-sex sexual harassment

In this action to recover damages for alleged employment discrimination on the basis of sex and unlawful retaliation in violation of Administrative Code of the City of New York §8-107, Plaintiff, a civilian employee of the New York City Police Department [NYPD], alleged that a same-sex fellow civilian employee [Co-worker] of NYPD sexually harassed her by making comments about her appearance and by touching her inappropriately.

Plaintiff further alleged, among other things, that her supervisors aided and abetted the alleged harassment and, or, retaliated against her for her complaints regarding Co-worker's conduct.

The New York City Human Rights Law prohibits discrimination in employment based upon gender, and prohibits aiding and abetting discrimination or retaliation for an employee's protected activity in response to discrimination. These protections include "prohibitions on harassment between members of the same sex," as alleged here by Plaintiff.

The Appellate Division explained that demonstrations of same-sex harassment include showing that:

(1) "the harasser was homosexual and motivated by sexual desire;"

(2) "the harassment was framed in such sex-specific and derogatory terms ... as to make it clear that the harasser [was] motivated by general hostility to the presence of a particular gender in the workplace;" or

(3) "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace."

Addressing a motion for summary judgment on behalf of NYPD and certain of its named staff members [City Defendants], the Appellate Division said that an action brought under the NYCHRL must be analyzed under both the framework of McDonnell Douglas Corp. v Green, 411 US 792, and under the newer mixed motive framework, which imposes a lesser burden on a plaintiff opposing such a motion," citing Persaud v Walgreens Co., 161 AD3d 1019.

The court also noted that a defendant's motion for summary judgment dismissing a claim under the NYCHRL "should be granted only if no jury could find [the] defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, direct evidence, or some combination thereof."

Here City Defendants demonstrated, prima facie, that "there was no evidentiary route" that could allow a jury to find that Co-worker was motivated by sexual desire or by general hostility to the presence of women in the workplace, or that City Defendants treated male and female coworkers differently. Further, observed the Appellate Division, evidence established that, in response to the Plaintiff's complaint, City Defendants took prompt remedial action and Plaintiff failed to raise a triable issue of fact.

Accordingly, said the court, it agree with the Supreme Court's granting certain branches of City Defendants' motions for summary judgment dismissing those causes of actions alleging harassment by City Defendants and that City Defendants abetted  harassment in violation of the NYCHRL insofar as asserted against each of the named City Defendants.

Addressing Plaintiff's claims of retaliation under the NYCHR, the Appellate Division indicated that "[T]o make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct."

In this instance the Appellate Division said that "even assuming that the Plaintiff had engaged in a protected activity under the NYCHRL, City Defendants demonstrated, prima facie, ... that the Plaintiff could not establish that City Defendants were aware of such activity, or that there was a causal connection between that activity and the alleged acts of retaliation and Plaintiff failed to raise a triable issue of fact.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05173.htm