Long, unblemished, service record considered to mitigate harsh disciplinary penalty imposed on employee

A New York City Transit Authority [NYCTA] bus driver [Petitioner] was served with disciplinary charges alleging he had engaged in lewd activity in public. A disciplinary hearing officer found Petitioner guilty of the charges and recommended that Petitioner be terminated. The appointing authority adopted the findings and penalty recommended by the arbitrator and dismissed Petitioner from his position.

Petitioner appealed the penalty imposed by NYCTA but Supreme Court denied Petitioner's motion to vacate the arbitration award. Petitioner appealed the Supreme Court's ruling. and subsequently the Appellate Division vacated the penalty portion of the arbitration award, remanding the matter to the arbitrator for the arbitrator to consider imposing a different penalty.* The Appellate Division explained that the time that incident at issue occurred:

1. Petitioner had been a NYCTA bus driver for 15 years;**

2. Had received consistently positive performance evaluations; and

3. Had never been disciplined.

However, during the second arbitration hearing, held upon remand, Petitioner testified that he had recently pleaded guilty to reckless driving in Ohio, which offense the arbitrator considered in conjunction with the original offense and imposed the penalty of demoting Petitioner to the position of cleaner.

Again Petitioner appealed, challenging the "different penalty" imposed by the arbitrator.

The Appellate Division opined that the revised penalty imposed by the arbitrator was proper and there was sufficient proof to justify the award, which was consistent with the court's earlier directive with respect to the arbitrator considering imposing a lesser penalty on Petitioner.

* See Matter of Fernandez v New York City Tr. Auth., 120 AD3d 407.

** The Appellate Division noted Solis v Department of Educ. of City of N.Y., 30 A.D.3d 532, in which that court found that termination unwarranted for petitioner with "otherwise unblemished 12-year record."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_09087.htm

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A Reasonable Disciplinary Penalty Under the Circumstances
 Determining an appropriate disciplinary penalty to be imposed on an employee
 in the public service found guilty of misconduct or incompetence.
For more information click on http://booklocker.com/7401.html
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On March 7, 2020 Governor Andrew M. Cuomo declared a state of emergency to help New York more quickly and effectively contain the spread of the COVID-19

On March 7, 2020, during a briefing on the novel coronavirus, Governor Andrew M. Cuomo declared a state of emergency to help New York more quickly and effectively contain the spread of the virus. The Governor also confirmed 32 additional cases, bringing the statewide total to 76. 

Additionally, the Governor directed the New York State Department of State's Consumer Protection Division to launch an investigation into reports of unfair price increases of consumer products such as household cleaning supplies and hand sanitizer amid the novel coronavirus outbreak, and launched a toll-free hotline - 1-800-697-1220 - for New Yorkers to report suspected price gouging."

The Governor said "As we continue to provide essential updates and encourage people to act upon the facts on coronavirus instead of the hype, I have officially done a declaration of emergency which gives us certain powers to help local health departments that are very stressed. As the local health departments continue to monitor and quarantine people, we have a more expedited purchasing protocol to get them all the tools they need to contain the virus spread. In the meantime we are cracking down on price gouging which continues to be a problem, and I want businesses to be aware that you could lose your license because we are very serious about this."

This state of emergency declaration allows, among other things:

Expedited procurement of cleaning supplies, hand sanitizer and other essential resources;

Allowing qualified professionals other than doctors and nurses to conduct testing;

Expedited procurement of testing supplies and equipment;

Expedited personnel onboarding;

Expedited leasing of lab space;

Allowing EMS personnel to transport patients to quarantine locations other than just hospitals; and 

Providing clear basis for price gouging and enforcement investigation

The 32 new cases identified today are located in New York City and Westchester and Saratoga counties. Of the 76 total individuals in New York State who tested positive for the virus, the geographic breakdown is as follows:

Westchester: 57

New York City: 11

Nassau: 4

Rockland: 2

Saratoga: 2

In addition, the Division of Consumer Protection has also created an online consumer complaint form, where New Yorkers can report suspected price gouging or concerns about improper delivery of quantity. Consumers who wish to file a complaint can visit 

https://www.dos.ny.gov/consumerprotection/. All credible complaints will be referred to the New York State Attorney General's office.

At a briefing yesterday, Governor Cuomo announced travel insurance companies and travel agents will offer New York residents and businesses the ability to purchase coverage when making travel plans that would allow them to cancel a trip for any reason, including for reasons related to COVID-19.

The Department of Financial Services issued guidance allowing travel agents and travel insurers to offer this type of coverage after DFS received consumer complaints that such polices were not available in New York State. This new action is designed to provide reassurance to New York businesses and residents who are seeking to make plans that may involve travel to locations that are not currently under travel advisories due to COVID-19.

Six global and national insurance companies have agreed to offer "cancel for any reason" coverage to travelers, including: Allianz, Nationwide, Starr Indemnity, Berkshire, Crum & Forster, and Zurich. DFS also directed New York State travel insurance issuers to proactively reach out to individuals and businesses who bought their policies to let them know what is covered.

Click on the text in color to read a copy of the DFS Insurance Guidance Letter .

Attempting to revoke or rescind a resignation sent to an appointing authority

This CPLR Article 78 petition filed by a town attorney [Petitioner] asked the Supreme Court to review the Town Board [Respondent] deeming Petitioner's resignation effective based on its having been "accepted" during a meeting  of the Town Board.* Petitioner contended  that his resignation was ineffective, and that he was improperly terminated from his position as town attorney. Supreme Court granted Respondent's motion to dismiss the petition, dismissed the proceeding and Petitioner appealed the court's ruling

Petitioner had been appointed town attorney effective January 3. By letter dated May 11 of that same year addressed to the Town Supervisor, Petitioner gave notice of his intent to resign from the position "as soon as my successor has been identified, and the Town Board is ready to appoint him or her." On May 14 the Town Supervisor had Petitioner's letter delivered to the Town Clerk, who stamped and filed it in the regular course of business. 

Although Petitioner subsequently attempted to rescind the resignation addressed to the Town Supervisor and the Deputy Town Supervisor, the Town Board "accepted his resignation" during a meeting in June of the same year and employed a replacement town attorney.

The Appellate Division affirmed Supreme Court's ruling.

Although the Petitioner's written resignation was sent to the Town Supervisor instead of the Town Clerk as required by Public Officers Law §31(1)(g) and (2), the Appellate Division said that it found that "the statute was substantially complied with when the resignation letter was delivered by the Town Supervisor's legislative aide to the Town Clerk, who then filed it in the regular course of business. Therefore, the [Petitioner's] resignation was effective."

Moreover, as it was undisputed that Petitioner never sought the consent of the Town Clerk to withdraw or cancel the resignation, the court said it agreed with the Supreme Court's determination to dismiss the proceeding based on Petitioner's "failure to exhaust administrative remedies."

There may be other elements to be considered in determining the "effectiveness" of a resignation.

Although an appointing authority may characterize "acceptance" as the operative element in effecting a resignation, such a characterization is troublesome. For example, §31 of New York’s Public Officers Law provides that written resignations by public officers  take effect upon delivery to the appropriate authority [emphasis supplied]. 

Similarly, the New York State Civil Service Commission’s Rules for employees of the State as an employer provide, in pertinent part, as follows:

“If no effective date is specified in a resignation, it shall take effect upon delivery to or filing in the office of the appointing authority. If an effective date is specified in a resignation, it shall take effect on such specified date.” Clearly acceptance of the resignation is not the "operative" element with respect to effecting a resignation except in those situations where “acceptance” is mandated by statute.

§2111 of the Education Law is an example of a situation where "acceptance of the resignation" is mandated by statute. 

§2111 provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

It should also be noted that the withdrawal of a written resignation may be effected by an individual if such written withdrawal is delivered to the appropriated body or officer before that body or officer receives the individual's written resignation.

In Hazelton v Connelly, 25 NYS2d 74, the Court of Appeals opined that all that is required for a resignation to become operative is its delivery to the appointing authority prior to the receipt of an employee’s notice of the employee's withdrawal or rescinding of the resignation. Approval or acceptance of the resignation is not required for the resignation to take effect except as otherwise mandated by statute, by a relevant rule or regulation or by a relevant term or condition of employment set out in a collective bargaining agreement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01175.htm

Educator suspended for 15 days without pay as the penalty for locking a 10-year old student out of the classroom

The Appellate Division held that the arbitrator's imposing a disciplinary penalty suspending an educator for 15 days without pay had a rational basis and was supported by the evidence, which included:

1. The arbitrator reasonable determination that the educator was guilty of misconduct when he locked a 10-year old student out of the classroom and left him unsupervised in the hallway. 

2. Finding that even were the educator justified in removing the student from the classroom, his actions in locking the student out of the room in a state of distress and leaving him in the hallway without adequate supervision, violated school policy.

The Appellate Division said that imposing a penalty of a 15-day suspension from employment did not shock its sense of fairness, citing  Matter of Ghastin v New York City Dept. of Educ., 169 AD3d 507.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00976.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Appointing authority faulted for failing to provide a disabled person a reasonable accommodation, namely, permitting the use of a hearing aid

The New York State Division of Human Rights [DHR] adopted the recommended decision and order of the Administrative Law Judge holding that the petitioner in this action, the New York State Unified Court System, Office of Court Administration [OCA], had discriminated against the complainant based on his hearing disability and directed OCA to cease and desist from subjecting individuals to blanket exclusions from the court officer-trainee job title based on hearing loss or the use of hearing aids, pay a civil fine and penalty of $30,000, and pay the complainant $5,000 in compensatory damages, The Appellate Division unanimously confirmed DHR's ruling.

The court said that DHR's finding of discrimination was supported by substantial evidence in that:

1. Complainant, a per diem court interpreter for OCA in its courts and in other courts, established a prima facie case that OCA discriminated against him on account of his disability of some hearing loss in his right ear;

2. Complainant "sufficiently demonstrated that upon the provision of reasonable accommodation," namely, a hearing aid,* he can perform in a reasonable manner the essential functions of a court officer-trainee.

3. Complainant had passed the written test for the court officer-trainee position and was conditionally appointed. 

4. Although the job duties are different, Complainant "adequately performed the functions of court interpreter without a hearing aid and without complaints from those who used his services."

5. Complainant was not obligated to be evaluated for and purchase a hearing aid, and to retake the audiometric test, at his expense, to further make his prima facie case after OCA made clear it still would deem him unqualified and would reject such test results.

The Appellate Division opined that permitting court officers to wear a hearing aid is a reasonable accommodation and would not, as OCA argued, impose undue hardship on OCA by posing any "direct threat," i.e. "a significant risk of substantial harm to the ... safety of the employee or others," noting that "OCA [relies] only to the physical demands of the job and the speculative risk that a hearing aid could become dislodged in a scuffle or fail to operate in an emergency."

Further, said the court, "OCA's argument is undermined by its own policy permitting court officer-trainee candidates to meet its vision standard with or without corrective lenses or glasses, which could be lost or become dislodged in a scuffle."

An individual may be denied employment because of a disability only if that condition will prevent him from performing in a reasonable manner the activities involved in the job or occupation sought, based on an individualized assessment of the specific individual. OCA failed to provide any legitimate non-discriminatory reason for its decision.  

No sufficiently individualized assessment occurred here, nor did OCA's formula take into account the ability of someone with asymmetrical hearing loss to perform the essential functions of a court officer-trainee. While OCA may have a preference for those with a minimal amount of hearing acuity might be a bona fide occupational qualification, the court opined that its preference for hearing acuity without the use of a hearing aid is not.

Citing Matter of County of Erie v New York State Div. of Human Rights, 121 AD3d 1564, the Appellate Division noted that "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty ... constitutes an abuse of discretion as a matter of law .... [A] penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness." Here, the civil penalty was neither an abuse of discretion nor was it unreasonable.

Given OCA's blanket policy barring hearing-impaired persons from employment as court officers and its failure to accommodate Complainant who had an asymmetric hearing loss, the Appellate Division concluded that the civil penalty of $30,000 was correctly assessed as Executive Law §297[4][c] provides that a civil penalty below $50,000 may be assessed if an entity is found to have committed an "unlawful discriminatory act".

* OCA bans the use of hearing aids on the job or for the audiometric test to medically qualify for the position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01252.htm