Contaminants of Emergent Concern discussed at New York State Bar Association meeting

Dr. Robert A. Michaels, NYPER's Environmental Science Consultant, made an invited presentation to the New York State Bar Association, Energy and Environmental Law Section on January 31, 2020.  

The presentation, titled Contaminants of Emergent Concern, is available for viewing and/or download at no charge, at the following URL: 

https://www.researchgate.net/publication/339055672_Legacy_Contaminants_of_Emergent_Concern.  

The Focus of Dr. Michaels' Presentation

Concern about historic (‘legacy’) contaminants may be emerging as information about their toxic effects and toxic potency increases, and with discovery of their presence at toxic levels in various environmental media. 

Two classes of substances exemplify such concerns: lead (Pb) and its compounds, and perfluorinated compounds (PFAs). PFAs have been termed ‘forever chemicals’, but Pb qualifies as well. 

Concern about these contaminants is emerging because of at least three issues: failures of environmental justice, the need for international agreements regarding globe-trotting contaminants, and the conflict between protecting science and public health exemplified by inadequately probative study designs for identifying cancer clusters.

Click here for summaries of selected articles by Dr. Michaels posted on NYPPL:

https://publicpersonnellaw.blogspot.com/2020/01/articles-by-dr-robert-michaels-nypers.html

You may contact Dr. Michaels at bam@ramtrac.com .

Employee found to have acted unprofessionally terminated from the position

A Triborough Bridge and Tunnel Authority Bridge and Tunnel Officer (“BTO”) served with disciplinary charges was found to have acted unprofessionally when she yelled profanities at a motorist and had to be restrained by colleagues. 

The BTO also was found to have failed to safeguard her Authority-issued radio, which wound up in the motorist’s vehicle. The charge that the BTO threw her radio at the motorist, however, was dismissed by OATH Administrative Law Judge Ingrid M. Addison as "not proved."

Judge Addison recommended that BTO be terminated from her position or, in the alternative, be suspended without pay for 60 days provided the BTO enroll in, and complete, an anger management program. 

The appointing authority elected to terminate the BTO.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-2691.pdf

New York - New Jersey Port Authority subject to New York State's Labor Law

The Appellate Division sustained a Supreme Court ruling that rejected the New York-New Jersey Port Authority's arguments that as a bi-state entity created by a federally approved compact it cannot be held liable under Labor Law §§240(1) or 241(6) for injuries plaintiff allegedly sustained while working in a building owned by the Authority.

The court explained that the Compact Clause of the United States Constitution is not implicated by the application of such New York workplace safety statutes to the Port Authority work site located in New York, which does not encroach on federal supremacy, citing Cuyler v Adams, 449 US 433.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_00365.htm

A retired member is required to repay pension benefits mistakenly paid to him by the New York State Employees Retirement System

The Petitioner in this CPLR Article 78 action began working as an engineer for the New York Power Authority in March 1980. In order increased the pension benefits payable to him by the New York State and Local Retirement System [NYSERS] upon retirement, in January 2001 Petitioner submitted an application to NYSERS in an effort to purchase "military service credit" based on his service as a Naval Reserve Officer from June 1966 until April 1969, during which period he served on merchant ships recommissioned to transport supplies to support the Vietnam war effort pursuant to a Naval Training and Service Agreement. Following such service Petitioner joined a naval reserve unit and was honorably discharged in February 1979.

Although his application was initially denied, NYSERS subsequently advised Petitioner that his application had been approved.* Petitioner retired in January 2003 and began receiving NYSERS pension benefits that included the value of the approved military service credit.

In October 2017, however, NYSERS advised Petitioner that it had made an error in granting him military service credit toward his pension benefits. Specifically, he was informed that his service aboard the merchant marine ships did not qualify as military duty within the meaning of the State's Military Law §243 and, consequently, military service credit was not available to him.

In addition, Petitioner was told that [1] his pension benefits would be reduced; [2] his payment of $5,088.10 for the member service credit he purchased would be refunded to him with interest; and [3] he was required to repay NYSERS the amount of the overpayment of benefits that he had already received.

Petitioner sought administrative review and, following a hearing, the Hearing Officer sustained NYSERS' determination. The Comptroller adopted the Hearing Officer's decision and thereupon Petitioner commenced this CPLR article 78 proceeding challenging the Comptroller's decision.

The Appellate Division sustained the Comptroller's decision, explaining:

1. A member of NYSERS, upon application, "may obtain a total not to exceed three years of service credit for up to three years of military duty, as defined in New York State's Military Law §243 if the member was honorably discharged from the military; and

2. §243(1)(b) of the Military Law provides, in relevant part, that military duty includes "service in the merchant marine which shall consist of service as an officer or member of the crew on or in connection with a vessel . . . owned by, chartered to, or operated by or for the account or use of the government of the United States . . . and who served satisfactorily as a crew member during the period of armed conflict [December 17, 1941]to August 15, 1945] aboard merchant vessels."**

Clearly, said the court, "Petitioner's service in the merchant marine from 1966 to 1969 did not fall within the time parameters set forth in the statute." Further, the court opined that Petitioner failed to establish that his service aboard merchant vessels constituted active military duty as a Naval Reserve officer. Citing Matter of McMorrow v Hevesi, 6 AD3d 925, the Appellate Division said that it has only recognized "active duty, which excludes temporary and intermittent . . . service in any reserve . . . force,"  for purposes of claiming member service credit pursuant to Retirement and Social Security Law §1000 and Military Law §243(1)(b).***

Noting that there was evidence in the record that could lead to a different result, the Appellate Division opined that "because substantial evidence supports the Comptroller's determination that [Petitioner] was not entitled to military credit under the governing statutes, [it would] not disturb it."

Addressing Petitioner argument that he was erroneously directed to repay the pension benefits mistakenly paid to him, the court said that the Comptroller "had no choice but to seek recoupment of such benefits, as the Comptroller has a duty to correct errors in order to ensure the integrity of the public retirement system", citing Matter of Mowry v DiNapoli, 111 AD3d 1117. Further, said the Appellate Division, the Comptroller "is not estopped from doing so because of errors committed by [NYSERS] officials."

* In exchange for a nonrefundable payment of $5,088.10, Petitioner was awarded 1.53 years of additional member service credit toward his pension benefits.

** §85 of the Civil Service Law defines "qualifying" military service" for the purposes of eligibility for additional credit allowed veterans in competitive examinations and preference in retention upon the abolition of positions in the public service. [See, also, §85.7(5).]

*** Petitioner conceded that he did not qualify for veteran's benefits as a result of his service on merchant ships during the period June 1966 through April 1969.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00198.htm

Applying the Doctrine of res judicata

Plaintiffs brought a putative class action against their employer, the New York City Housing Authority [“NYCHA”], and their labor union, Defendant-Appellee Union Local 237, I.B.T. [the “Union”] alleging that NYCHA paid them less than similarly situated white employees and that their Union tacitly approved and encouraged this discriminatory compensation scheme, in violation of 42 U.S.C. §1981, the Equal Protection Clause, and the New York City Human Rights Law [“NYCHRL”].

In March 2017, the District Court [Schofield, J.] granted summary judgment in favor of NYCHA and the Union, finding that the record contained insufficient evidence of discriminatory animus.

The Circuit Court of Appeals, Second Circuit, affirmed this judgment on appeal [See Wynn v. New York City Hous. Auth., 730 F. App’x 92].

Plaintiffs then filed a second action against the Union [“Wynn II”], this time alleging that the Union violated Title VII, 42 U.S.C. § 2000e et seq., by allowing NYCHA to pay them less than similarly situated white employees.

The District Court dismissed Plaintiffs’ amended complaint under Rule 12[b][6], concluding that their claims were precluded by res judicata. Plaintiffs then filed this timely appeal.

In Wynn II, Plaintiffs seek to hold the Union liable for “acquiesc[ing]” to NYCHA’s allegedly discriminatory compensation scheme. Plaintiffs’ Title VII claims are therefore based on their labor union’s failure to advocate for higher wages, not on their employer’s decision to pay them less than the prevailing wage rate. As a result, Plaintiffs cannot benefit from the Ledbetter Act, which, as this Court and other circuits have recognized, was directed “to a very specific type of claim: that the employer is ‘paying different wages or providing different benefits to similarly situated employees.’”

As the Ledbetter decision specifically dealt with a pay-discrimination claim that was cognizable without regard to other adverse employment actions, the Circuit Court found that the Ledbetter Act’s reference to ‘discrimination in compensation’ was to traditional pay-discrimination claims rather than to a pay reduction that flows from another adverse employment action.”

Accordingly, said the court, the Ledbetter Act does not save Plaintiffs’ Title VII claims from the application of res judicata.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/941a3a25-6d0d-4540-a4b1-7239a06af994/14/doc/19-962_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/941a3a25-6d0d-4540-a4b1-7239a06af994/14/hilite/