Determining service credit for the purpose of attaining tenure by educators serving as substitute employees

As this ruling by the Court of Appeals [Court] indicates, a substitute teacher may satisfy probationary service requirements using "Jarema credit"* attain tenure as §2509(1)(a) of the Education Law allows a teacher to apply service as a "regular substitute" towards completion of the probationary term required for tenure.

If a probationer substitutes for a teacher who is on leave for an indefinite period, is he or she a "regular substitute" and thus eligible for Jarema credit? Yes said the Court. Further, the teacher can be deemed to have earned this credit retroactively, even if the district explicitly described the conditions of employment differently in the hiring process.

In other words, one can become a "regular substitute" by virtue of one's service even if the job was described differently at is onset. The Court explained that the "ambiguous statutory term 'regular substitute' should be defined by the actual nature and continuity of the substitute service, not by the anticipated duration of the replaced teacher's absence."

Jarema credit may open the door to tenure by estoppel should a school board accepts the continued services of a teacher, but fail to take the action required by law to either grant or deny tenure prior to the expiration of the educator's probationary term..

In this instance, a Board of Cooperative Educational Services [BOCES] employed two types of substitute teachers: "per diem substitutes" and "regular substitutes."

Per diem teachers were employed for an indefinite period in order to cover the absences of regular teachers.  Per diem teachers were paid at a daily rate and had limited employment benefits.

In contrast, BOCES' "regular substitutes" were teachers who received a "special appointment for a fixed time." Regular substitutes were typically paid from a salary line temporarily available because the regular teacher was on a leave of absence. Regular substitutes also received a prorated annual salary with full benefits.

In adjudicating an educator's claim that she had attained tenure by estoppel the Court held that  "... as probationary periods are employed to determine if appointees are 'competent, efficient and satisfactory' for purposes of recommending tenure, there is no reason why [the educator's] service following her initial appointment should be considered anything less than time accrued towards reducing the [mandatory] probationary period the statute requires."

Thus opined the Court, tenure evaluations can be made regardless of the title under which the probationer serves. A school board may not undermine the policies behind the tenure system and artificially extend the probationary period by designating a position "acting" or "temporary," said the Court.

In addition, the Court rejected BOCES' argument that sanctioning a "surprise" acquisition of tenure by estoppel would both saddle school districts with the administrative burden of tracking the probationary term for teachers on a day-to-day basis and deny them the full statutory period in which to consider qualifications for tenure.

The Court said that such an argument assumes the wrong perspective on the tenure rules.

It said that its prior opinions has made clear that tenure rules should be read so as to discourage a board's use of technical obstacles and manipulable labels that can deprive a qualified teacher of tenure rights. Further, the distinction between "definite" and "indefinite" leaves does not in fact assure BOCES predictability or certainty since a "definite term" is not a requirement for regular substitute service. Indeed, even where a regular substitute is engaged for a "definite term" to replace a tenured teacher, the absence may end unexpectedly and the tenured teacher can insist upon early return to the encumbered position.

Noting that in this instance the educator had continuous service with BOCES, the Court ruled that she was entitled to Jarema credit that, when combined with her additional service with BOCES, entitled her to tenure.

* Typically referred to by the name of the bill's sponsor, then Member of the Assembly  Stephen J. Jarema, Education Law §2573[1][a], in pertinent part, provides that “Teachers and all other members of the teaching staff, authorized by section twenty-five hundred fifty-four of this article, shall be appointed by the board of education, upon the recommendation of the superintendent of schools, for a probationary period of three years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years … the probationary period shall be limited to one year….”

The decision is posted on the Internet at:

https://www.leagle.com/decision/199720090ny2d1101193

A hospital may held liable for violations of the Rehabilitation Act if its staff members are deemed to be acting as "officials" or "policymakers" of the hospital

This decision addresses whether and when hospital staff members may be considered to be acting as "officials" or "policymakers" of the hospital at which they are employed so that their conduct may be attributed to the hospital and thereby establish a Plaintiff’s right to damages on the ground that the defendant hospital was "deliberately indifferent" to a violation of the federal Rehabilitation Act [RA], 87 Stat. 355.*

Here, said the Second Circuit Court of Appeals, the record contains evidence that the hospital staff involved had knowledge of the deprivation of a patient’s right "to an interpreter, had the power to cure that violation, and failed to cure it."

Accordingly, the court ruled that the federal district court's summary judgment in favor of the defendant hospital was inappropriate.

This, said the court, did not mean that a hospital could absolve itself of liability for damages by failing to empower staff members who have contact with patients to cure potential violations of the RA, such as by failing to empower front line staff to procure, as was necessary in this instance, an interpreter for the hearing impaired. 

Indeed, opined the Circuit Court of Appeals, a hospital might be liable precisely because its policymakers failed to put in place a policy that would reasonably enable a patient to obtain the relief guaranteed by the  RA by complaining to the staff with whom the patient has contact. Were such the case, it could be argued that the “policymaker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result" from its failing adopt a policy providing for a patient obtaining RA rights to which they were entitled.   

Such an argument, observed the Circuit Court, is especially strong in cases where a regulation expressly addresses a particular need, effectively putting hospital policymakers on notice that they must ensure the hospital’s policies are reasonably capable of meeting that need, specifically citing 45 C.F.R. §84.52(d)(1). 

* 45 C.F.R. §84.52(d)(1) mandates that hospitals subject to its provisions “shall provide appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills.”

The decision is posted on the Internet at:

https://hr.cch.com/eld/BiondoHealth081919.pdf

A party seeking a stay of arbitration alleging a violation of a term set out in a collective bargaining agreement must show that it has not agreed to arbitrate the issue or some other basis barring arbitration

Under what conditions may a party obtain a stay of a demand for arbitration was the significant issue in the litigation involving an alleged violation of a provision set out in a collective bargaining agreement [CBA] negotiated pursuant to Article 14 of the Civil Service Law, commonly referred to as the Taylor Law?

The CBA between the employer [City] and the employee organization [Union] provided that in the event an employee in relevant collective bargaining unit  was  "necessarily absent" from duty as the result of an occupational injury or disease and who was placed on [disability] leave pursuant to §71 of the Civil Service Law, the employee was to receive full salary for a maximum period of nine months during such absence notwithstanding the limitations set out in §71 with respect to "paid leave" while on such disability leave.*

A member of the Union in the collective bargaining unit [Employee] placed on §71 leave and was granted paid disability leave in accordance with the terms set out in the CBA. About a month later the City had Employee examined by its medical expert [Physician]. Physician found that Employee suffered from a mild impairment and that he was then fit perform sedentary work. The Physician also opined that Employee could perform "full duty" within two weeks.

Newburgh directed Employee to report for "sedentary work." When Employee filed to report for work as directed, City removed him from the payroll.

Employee was again examined by the City's medical expert and, again, the Physician found no disability and, again, the City directed Employee to return to work. Employee, again, failed to report for duty as directed.

Next the Union filed a contract grievance claiming that the City had improperly discontinued Employee's disability leave with pay. When the grievance was denied, Union demanded that the matter be submitted to arbitration. City thereupon obtained a court order from Supreme Court staying the arbitration on the grounds that "the issues raised by [Union] were not arbitrable."

The Appellate Division vacated the stay issued by Supreme Court, permitting the arbitration to go forward.

The court pointed out that a party to a collective bargaining agreement may seek a stay of arbitration on the ground that a valid agreement to arbitrate has not been made or under color of some other reason authorized by §7503 of the Civil Practice Law and Rules. In addition, the Appellate Division explained that a court may stay the arbitration when the particular claim to be arbitrated is not within the scope of the arbitration agreement.

Although City had contended that the matter that the Union sought to have submitted to arbitration was not within the scope of the arbitration agreement, the Appellate Division found that the City had not demonstrated any basis justifying staying the arbitration.

The court held that "[A] challenge to the propriety of the City's withdrawal of its grant of paid [disability] leave to [Employee] pursuant to ... the collective bargaining agreement is a claim within the scope of the arbitration clause" set out in the CBA as the agreement, by its terms, provided that "a claim of violation, misinterpretation or misapplication of the terms of a written collective bargaining agreement" was subject to binding arbitration."

The Appellate Division also observed that "the mere fact that the arbitration may entail the incidental interpretation or application of statutes does not compel a different result."

* §71, sometimes referred to as Workers' Compensation Leave, mandates that employees in the classified service be given a leave of absence without pay for at least one year unless the disability is of such a nature as to permanently incapacitate the individual for the performance of the duties of his position. The employee may use sick and other leave or compensatory time credits in order to be retained on the payroll while on §71 leave.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1996787232ad2d5551237

Challenging the denial of an application for disability retirement benefits when the application is rejected by a "tie vote" by the trustees of the retirement fund

In Guidal v Trustees of the NYC Fire Department Article 1-B Fund, 275 AD2d 458, the Appellate Division demonstrated the difficult test that a claimant faces in attempting to have a court overturn a decision by the trustees of a pension fund denying his application for accidental disability retirement benefits. In Guidal's case the Trustees, by a tie vote, disapproved his application for accidental retirement benefits but approved him for ordinary disability retirement benefits. The court observed that:

"Where the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund ... denies an application for accidental disability benefits as a consequence of a tie vote, the Board’s determination can be set aside on judicial review only if it can be concluded as a matter of law that the petitioner’s disability was the natural and proximate result of a service-related injury."

In the instant CPLR Article 78 action the Supreme Court annulled the determination of the retirement system's Board of Trustees [Board] which, by a tied vote, denied Petitioner's application for accidental disability retirement benefits and remanded the matter to the Board for its further consideration.

The Board appealed and the Appellate Division unanimously reversed the lower court's ruling "on the law" and dismissed the proceeding.

Citing Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Appellate Division explained that "[b]ecause the Board of Trustee's denial of [Petitioner's]  application for accident disability retirement was the result of a tie vote, the issue for the reviewing court was whether there was any credible evidence of lack of causation, i.e., evidence that the disability was not the natural and proximate result of the 1996 service-related accident."  

Other elements considered by the Appellate Division in making its ruling was the fact that :

[1] The record included "some credible evidence of lack of causation, namely, the conservative treatment [Petitioner] received after the accident and [Petitioner's] return to full duty for approximately 14 years before seeking further treatment;" and 

[2] The fact that "neither the Medical Board nor petitioner's physician were able to explain why the purported disabling injury did not prevent [Petitioner] from returning to full time duty for 14 years without further complaint."

The State Comptroller is the sole trustee of the New York State Employees’ Retirement System. Presumably the same analysis would be applied in cases where the determination concerning approving an application for accidental or duty-related disability benefits is at issue.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06151.htm

Suspending an employee without pay while disciplinary charges are pending

  

§75 of the New York State Civil Service Law provides that an employee who has been served with disciplinary charges may be suspended without pay for up to 30 days.* If the disciplinary proceeding has not been completed by that date, the individual must be restored to the payroll.

Under certain circumstances, however, the court may decide that the appointing authority is not required to restore the suspended individual to the payroll even though the statutory 30-day period has expired. The decisions in these two cases provide examples of such situations.

First action:

The Plaintiff [Employee] in Decision 1 was served with charges of misconduct. During the §75 hearing that followed, the parties met in an effort to settle the matter.

According to the Respondent [Appointing Authority], an "oral settlement" was reached whereby Employee agreed to her resign from her position. Employee, on the other hand, said that no settlement had been reached. The fact that there was no document formalizing any settlement did not help the situation.

When the Appointing Authority failed to restore Employee to the payroll after she had been suspended without pay for 30 days, Employee sued. A New York State Supreme Court granted Employee's petition for a preliminary injunction enjoining the Appointing Authority from continuing "her suspension without pay" and the Appointing Authority appealed.

Was Employee entitled to the injunction? The Appellate Division thought not, commenting that a preliminary injunction should be granted only:

a. when the moving party has shown a likelihood of ultimate success on the merits;

b.  an irreparable and imminent injury if the injunction is withheld; and

c. that a balancing of the equities favors the moving party.

Deciding that Employee had failed to satisfy any of these elements, the Appellate Division reversed the lower Court's order granting injunctive relief.

What was the reasoning of the Appellate Division? The Court said that "if a fact finder ultimately concludes that [Employee] did resign as part of a disciplinary settlement agreement, she would not be entitled to back pay. As resolution of the question of the claimed settlement may be a determinative factor, since the issue is heavily contested, Employee has not shown a clear likelihood of success on her underlying claim.

Further, the Court decided that Employee did not demonstrate "irreparable injury." As she was only seeking monetary damages, the Court said were she to prevail on the merits her damages can be easily computed and she will be fully compensated for them.

As to the issue of the "balance of equities," the Appellate Division again noted that if Employee wins, she could, and would, be fully compensated for her loss by the Appointing Authority. If, on the other hand, should the Appointing Authority prevail after being forced to pay Employee's salary to her pending a final determination, the Court said that it is much less certain that the Appointing Authority will be able to recoup those payments.

The lesson here is that the terms and conditions of any settlement arrived at in the course of a disciplinary proceeding should be immediately reduced to writing and signed by the parties before they leave the proceeding.

Second action:

The ruling in Decision 2 concerned a related issue - restoration of an individual to the payroll if a court remands a §75 disciplinary determination for reconsideration by the appointing authority.

In this action the employee [Plaintiff] was terminated from her position after being found guilty of §75 disciplinary charges. She appealed and the Appellate Division returned the case to the Employer [Respondent] "for development of appropriate findings supporting the determination to terminate Plaintiff."

In a subsequent appeal Plaintiff contended that she was entitled to reinstatement and back salary retroactive to the date of her termination because the Appellate Division had remanded the appointing authority's original disciplinary determination "for the development of appropriate findings ...." In effect, Plaintiff, in effect, contended that this was the equivalent of a vacating of the determination.

The Appellate Division rejected Plaintiff's theory, indicating that neither the disciplinary determination nor the penalty imposed by the Respondent was  annulled as a result of its remanding the original administrative determination for further action by the appointing authority. Rather, said the Court, it had simply "withheld [its] decision" pending its receipt of the "requisite finding" by the Respondent.

Apparently satisfied that the "requisite finding" of the appointing authority supported its §75 determination and the penalty imposed, the Appellate Division sustained Plaintiff's termination.

In contrast, had the Court decided that the determination was not supported by the record or that the penalty imposed did not satisfy the Pell standard, i.e., dismissal was “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness,” [see Pell v Board of Education, 34 NY2d 222],  it probably would have directed Plaintiff's reinstatement with all, or a portion, of her back salary.

* A collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, the so-called Taylor Law, may provide for an alternative to this statutory provision for suspension without pay, in which case the provision set out in the collective bargaining will control.

The decisions are posted on the Internet at:

First action: https://www.leagle.com/decision/1997949238ad2d7111226; and  https://www.leagle.com/decision/19991078259ad2d8191315

           

Second action: https://www.leagle.com/decision/19951122213ad2d9091352