The penalty of termination held not so disproportionate to the offense so as to be shocking to one's sense of fairness” in light of the employee’s statement about “going postal”

A hearing officer, after a hearing conducted pursuant to Civil Service Law §75, found a “firehouse maintainer” [Petitioner] guilty of certain charges of misconduct and/or incompetence and recommended that the Petitioner be terminated from his position. The Fire District [District] adopted the findings and recommendation of the hearing officer and dismissed Petitioner from his position. Petitioner filed an appeal pursuant to CPLR Article 78 challenging the District’s decision.

The Appellate Division, sustaining the District’s action, noted that in addition to charges alleging excessive socializing and failure to complete assigned duties, Charge V, Specification 1, alleged that Petitioner stated that he "wanted to get a gun and go postal on this place."

Addressing Charge V, Specification 1, the hearing officer found that Petitioner had used the phrase "go postal" or "going postal," but he did not find that Petitioner used the word "gun." However, said the court, the hearing officer also determined that Petitioner understood the meaning of the phrase "going postal," and that the phrase reasonably could be interpreted as threatening.

Citing Matter of Thomas v Town of Southeast, N.Y., 168 AD3d 955 and other decisions, the Appellate Division explained that with respect to employee disciplinary cases, “judicial review of factual findings made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence.”

Further, opined the court, "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists.”*

Further the court explained that any credibility issues were resolved by the hearing officer and substantial evidence in the record supported the determination that Petitioner was guilty of the misconduct and/or incompetence alleged some, but not all, of the Charges and Specifications filed against him.

Finally the Appellate Division noted that a court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness, citing Matter of Waldren v Town of Islip, 6 NY3d 735 and indicated that although “... reasonable minds might disagree over what the proper penalty should have been does not provide a basis for . . . refashioning the penalty." Here, said the court, “the penalty of termination was not so disproportionate to the offense so as to be shocking to one's sense of fairness”, especially in light of the disturbing nature of the Petitioner's statement about “going postal”.

* See Matter of Grimaldi v Gough, 114 AD3d 679, 680, quoting Berenhaus v Ward, 70 NY2d 436 at 444.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2020/2020_01496.htm

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Rescinding a resignation

An individual's notice that he or she has decided to withdraw, cancel or rescind the resignation may be received by the appropriate official or body before the resignation is actually "delivered" to such person or body. In such situations the courts usually rule that the receipt of a withdrawal of a resignation before the resignation itself is delivered effectively voids the resignation [see Grogan v Holland Patent CSD, 262 AD2d 1009].

Although it is sometimes reported that "a resignation has been accepted," all that is required for a resignation to become operative is its delivery to the appointing authority; approval or acceptance of the resignation is not required for the resignation to take effect (see Hazelton v Connelly, 25 NYS2d 74) unless specific acceptance of a resignation is required by law, rule, regulation or the terms of a collective bargaining agreement.

4 NYCRR 5.3(a) which controls with respect to employees of the State as an employer, provides that “Except as otherwise provided herein, every resignation shall be in writing. Further, 4 NYCRR 5.3(c) provides that once a resignation is received by the appointing authority or its designee, “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority [emphasis supplied].

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Town of Pawling, accepting the petitioner's resignation from the position of town attorney, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Dutchess County (James D. Pagones, J.), dated October 30, 2018. The order and judgment granted the respondents' motion to dismiss the petition, and dismissed the proceeding.

The Appellate Division "ORDERED that the order and judgment is affirmed, with costs."

The petitioner was appointed town attorney for the respondent Town of Pawling, effective January 3, 2018. By letter dated May 11, 2018, addressed to the Town Supervisor, the 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, 2018, at the direction of the Town Supervisor, the petitioner's letter was delivered to the respondent Town Clerk, Cathy Giordano, who stamped and filed it in the regular course of business.

Thereafter, despite the petitioner's subsequent attempts to rescind his resignation, which were addressed to the Town Supervisor and the Deputy Town Supervisor, the Town Board accepted his resignation during a meeting on June 13, 2018, and hired a replacement town attorney.

The petitioner commenced this proceeding pursuant to CPLR article 78, contending that his resignation was ineffective, and that he was improperly terminated from his position as town attorney. The Supreme Court granted the respondents' motion to dismiss the petition, finding that the petitioner's resignation was effective, and that he never sought the consent of the Town Clerk for his resignation to be withdrawn or cancelled, in accordance with Public Officers Law § 31(4). We affirm.

Although the petitioner's written resignation was presented to the Town Supervisor instead of the Town Clerk, as required by Public Officers Law § 31(1)(g) and (2), we find 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 [*2](see Matter of Popp v Town of Cornwall , 244 AD2d 492; Matter of Brescia v Mugridge , 52 Misc 2d 859, 863 [Sup Ct, Suffolk County], affd 29 AD2d 632). Therefore, the petitioner's resignation was effective.

Moreover, since it is undisputed that the petitioner never sought the consent of the Town Clerk to withdraw or cancel the resignation, we agree with the Supreme Court's determination to dismiss the proceeding based on his failure to exhaust administrative remedies (see Public Officers Law § 31[4]; CPLR 7801[1]).

RIVERA, J.P., CHAMBERS, MILLER and CONNOLLY, JJ., concur.

The decision is posted on the Internet at:

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

Challenges to the exclusion of certain compensation in the calculation of a member of a retirement system's pension benefit must be timely filed

Supreme Court granted the New York City Teachers' Retirement System's [CTRS] motion to dismiss an Article 78 action brought by a teacher [Educator] challenging its calculation of his retirement allowance. CTRS had argued that the Educator's action was untimely filed. 

Educator had challenged CTRS' calculation of the pension portion of his retirement allowance that had excluded his 2011 summer pay compensation in determining his retirement allowance in August, 2011. 

The Appellate Division unanimously affirmed the lower court's ruling, explaining that Educator was required to have filed his Article 78 petition challenging CTRS' decision within the applicable four-month statute of limitations, which began to run when CTRS' decision concerning the pension portion of Educator's retirement benefit became "final and binding on him" in October 2011 when Educator received "his benefits letter" from CTRS.

Further, said the Appellate Division, Educator's receipt of a letter from CTRS dated February 22, 2017 responding to his inquiry concerning his pension benefit stating that "there is nothing further than can be done" did not serve to extend the limitations period for Educator's bringing a timely Article 78 action.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01968.htm

Employee terminate after violating employer zero drug policy

New York City Fire Department [NYFD] filed disciplinary charges against an emergency medical technician [EMT] in its Emergency Medical Dispatch unit [EMD] serving as a "call taker" alleging that EMT violated NYCFD's zero-tolerance drug policy after he had failed a random drug test and a follow-up drug test about administered about month later.

Section 6.1(D) of NYC's Emergency Medical Service Operating Guide "strictly prohibits, among others, the use of illegal drugs that can lead to impairment while on duty" and marijuana is included among its definition of "illegal drugs." Further, NYFD rules provide that for a positive drug test for an illegal drug, the penalty for a first offense is termination.*

New York City's Office of Administrative Trials and Hearings Administrative Law Judge Ingrid M. Addison found no mitigation in EMT’s explanation for his use of marijuana and, in consideration of NYC's zero-tolerance drug policy, recommended EMT’s termination from his employment.

* Although NYCFD rules provide that the penalty to be imposed for a positive drug test for an illegal drug for a first offense is termination, NYFD has occasionally entered into agreements with uniformed members who tested positive for an illegal drug where penalties short of termination were imposed.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1004.pdf

Wearing a hearing aid is a reasonable accommodation under the circumstances

Final order of respondent New York State Division of Human Rights (DHR), dated November 15, 2017, which adopted the recommended order of the Administrative Law Judge, and determined, following a hearing, that petitioner New York State Unified Court System, Office of Court Administration (OCA) discriminated against respondent Jakub R. Zaic based on a disability, and directed petitioner to, inter alia, 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 respondent Zaic $5,000 in compensatory damages, unanimously confirmed, and the proceeding (transferred to this Court pursuant to pursuant to Executive Law § 298 by order of the Supreme Court, New York County [Shlomo Hagler, J.], entered June 8, 2018), dismissed, without costs.

The Commissioner's finding of discrimination is supported by substantial evidence. First, Zaic, currently 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 (Melman v Montefiore Med. Ctr., 98 AD3d 107, 112-113 [1st Dept 2012]; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 35 [1st Dept 2011], lv denied 18 NY3d 811 [2012]). Zaic 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 (Executive Law § 292 [21]; Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881, 883-884 [2013]).

Among other things, Zaic passed the written test for the court officer-trainee position and was conditionally hired. In addition, although the job duties are different, he adequately performed the functions of court interpreter without a hearing aid and without complaints from those who used his services. OCA bans the use of hearing aids on the job or for the audiometric test to medically qualify for the position. Zaic 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 reject such test results.

Permitting court officers to wear a hearing aid is a reasonable accommodation and would not, as OCA argues, 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" (9 NYCRR 466.11[g][2][I]; Executive Law §§ 292[21-e], 296[3][a]; Pimentel v Citibank, N.A., 29 AD3d 141, 145 [1st Dept 2006], lv denied 7 NY3d 707 [2006]). OCA cites only to the physical demands of the job and the speculative risk that a hearing aid could become dislodged in a [*2]scuffle or fail to operate in an emergency. 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.

Next, OCA failed to provide any legitimate non-discriminatory reason for its decision. 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 (Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 106-107 [1987]). No sufficiently individualized assessment occurred here, nor does OCA's formula take into account the ability of someone with asymmetrical hearing loss to perform the essential functions of a court officer-trainee.

Similarly, while OCA's preference for those with a minimal amount of hearing acuity might be a bona fide occupational qualification (Executive Law § 296[1][d]), its preference for hearing acuity without the use of a hearing aid is not.

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

"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'" (Matter of County of Erie v New York State Div. of Human Rights, 121 AD3d 1564, 1566 [4th Dept 2014], quoting Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]; see also Matter of New York State Div. of Human Rights v International Fin. Servs. Group, 162 AD3d 576 [1st Dept 2018]). Further, we have upheld civil penalties if they were "reasonable" (Matter of Framboise Pastry Inc. v New York City Commn. On Human Rights, 138 AD3d 532, 533 [1st Dept 2016]). Here, the civil penalty was not an abuse of discretion. Nor was it was unreasonable.

The record contains substantial evidence to support the Commissioner's finding that Zaic is entitled to a compensatory damages award of $5,000 (Executive Law § 297[4][c][iii]; Matter of Framboise Pastry Inc. v New York City Commn. on Human Rights, 138 AD3d 532, 533 [1st Dept 2016]; see Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 216-217 [1991]; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143, 147 [1974]).

We have considered petitioner's remaining contentions and find them unavailing.

The decision is posted on the Internet at:

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