Controverting a Workers' Compensation Law claim submitted by a former employee

The employer [School District] appealed a decision of the Workers' Compensation Board [Board] which ruled that its former employee [Claimant] sustained a causally-related occupational injury or disease of the neck and right shoulder resulting from her performing her duties as a school bus driver.

School District, in controverting the Claimant's application for workers' compensation benefits, argued that the Board's decision upholding the Worker's Compensation Law Judge's finding that Claimant sustained an occupational disease of the neck and the right shoulder was not supported by the evidence, asserting that Claimant filed "the claim as an afterthought, in response to being terminated from her position." 

Citing Matter of Corina-Chernosky v Dormitory Auth. of State of N.Y., 157 AD3d 1067, the Appellate Division said that "To be entitled to workers' compensation benefits for an occupational disease, a claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her occupation through the submission of competent medical evidence".*

The court explained that this is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence and that based on the court's review of the record, there is substantial evidence supporting the Board's determination.

The Appellate Division opined that, contrary to the School District's claim, there was no indication that the medical opinions of the physicians who treated Claimant were based upon false medical histories. Further, noted the court, the School District did not obtain its own independent medical examination to contradict those medical opinions.

Although the School District maintained that Claimant's testimony was not credible, the Appellate Division opined that the Board is vested with the authority to resolve issues of credibility and the record here "contains ample evidence establishing that [Claimant] complained of neck and right shoulder pain well before she filed her claim."

Accordingly, the Appellate Division said it found no reason to disturb the Board's decision.

* Claimant had attributed her "occupationally related disease" to her bus driving duties which required a significant amount of physical effort, "particularly in steering the buses, repeatedly opening and closing the door, and operating the parking brake."

The Appellate Division's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03156.htm

Determining if a work assignment constitutes out-of-title work prohibited by Civil Service Law §61(2)

Typically an out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade position "without a concomitant increase in pay, frequently, recurrently and for long periods of time."* 

Supreme Court dismissed the New York Public Employees Federation's [PEF] Article 78 petition alleging that certain parole officers and senior parole officers  [Petitioners] represented by PEF assigned to the Nassau County Parole Office were required to perform out-of-title work. PEF appealed the ruling.

The Appellate Division sustained the lower court's ruling, explaining that out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law §61(2) and, as here, by the relevant collective bargaining agreement. 

Citing New York State Corr. Officers and Police Benevolent Assn., Inc. v Governor's Off. of Empl. Relations, 105 AD3d 1192,** the Appellate Division pointed out that not all additional duties constitute out-of-title work. The dispositive question is whether "the new duties are appropriate to [the employee's] title and/or are similar in nature to, or a reasonable outgrowth of, the duties listed in [the employee's] job specifications."

In other words, the fact that an employee is not performing certain duties set out in the job description, assigning the individual to perform such duties does not constitute the performance of of out-of-title work.

Here, said the court, the record establishes that, on a limited and temporary basis,*** the individual Petitioners were, from time to time, assigned to perform certain building security functions, such as searching incoming persons, operating the magnetometer and securing the waiting room and area office. 

Although such duties were routinely assigned to institutional safety officers, the Governor's Office of Employee Relations [GOER] determined, upon a review of the relevant classification standards, that the duties could be appropriately performed by properly classified parole officers and senior parole officers and, thus, that the assignments were not out-of-title. 

In reviewing GOER's determination, the Appellate Division opined that its review was limited to assessing whether the record as a whole provides a rational basis for  GOER's determination and the administrative decision would not be disturb it unless it is wholly arbitrary or lacking a rational basis.

As noted in the relevant job descriptions, parole officers and senior parole officers are sworn peace officers under the Criminal Procedure Law, which empowers them to, among other things, perform warrantless searches and arrests, use physical force in making an arrest or preventing an escape and take custody and possession of firearms not owned by peace officers for lawful purposes. Further, the classification standards for these positions set forth that, among other responsibilities, parole officers and senior parole officers are required to perform law enforcement functions, carry firearms, pass firearms qualification testing and participate in mandatory deadly physical force and tactical training. 

Given the training and qualifications possessed by parole officers and senior parole officers, as well as the similarities between the grieved duties and those enumerated in the applicable classification standards, the Appellate Division said that it found a rational basis exists to support GOER's determination that the assigned duties did not constitute out-of-title work.

Thus, opined the Appellate Division, as there is no basis to disturb GOER's denial of the grievances and sustained Supreme Court's dismissal of PEF's Article 78 petition.

* Under the applicable collective bargaining agreement, out-of-title assignments below an employee's salary grade do not entitle that employee to monetary compensation. Rather, in such circumstances, the employee is entitled to a declaration that the duties were out-of-title and to a discontinuance of the out-of-title assignments (see Matter of Hightower v New York State Div. for Youth, 195 AD2d 913, leave t0 appeal denied 82 NY2d 660 [1993]).

** See http://www.nycourts.gov/reporter/3dseries/2013/2013_02445.htm

*** The grievance forms indicated that, following the retirement of an institutional safety officer, the individual Petitioners were assigned to cover shifts routinely performed by the institutional safety officer in the range of two to five dates in July 2016, with hours of coverage ranging from 5.5 to 19.5 hours in total.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_03052.htm

Arms of New York State may claim 11th Amendment immunity from lawsuits in federal court

The Eleventh Amendment of the Constitution of the United States provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." This amendment established the doctrine of "sovereign immunity" of States and was adopted in response to the United States Supreme Court's decision in Chisholm v. Georgia.*

Plaintiff-Appellant [Plaintiff] in this action had sued the State University of New York at Stony Brook [University] in United States District Court for the Eastern District of New York alleging the University had violated certain provisions of 42 U.S.C. §1983, Title IX of the Education Amendments of 1972, and Title VII of the Civil Rights Act of 1964. 

The federal District Court dismissed Plaintiff's complaint under color of  University having Eleventh Amendment immunity and Plaintiff appealed.**

The U.S. Circuit Court of Appeals, Second Circuit, held that the district court properly dismissed Plaintiff's  claims in consideration of the Eleventh Amendment, "which precludes suits against states unless the state expressly waives its immunity or Congress abrogates that immunity, neither of which occurred here." 

State institutions of higher education such as University, explained the Second Circuit, are arms of the State of New York for  Eleventh Amendment purposes and are therefore entitled to Eleventh Amendment immunity.***

The court noted that the question of whether Eleventh Amendment immunity constitutes a true issue of subject matter jurisdiction or is more appropriately viewed as an affirmative defense ”has not yet been decided by the Supreme Court or this Court." However the Circuit Court concluded that the issue need not be addressed within the ambit of Plaintiff's appeal because the answer would not affect its decision to affirm the District Court's ruling. 

A summary of common types of "immunity and qualified privilege" that may be claimed by a public employer and its officers and employees involved in litigation where the performance of official duties is a consideration is posted on the Internet at:

https://publicpersonnellaw.blogspot.com/2018/02/sovereign-immunity-absolute-immunity.html

* In Crisholm, a case decided in 1783, the United States Supreme Court, in a 4–1 decision, held that the State of Georgia did not possess sovereign immunity and was subject to suit by individual plaintiffs in federal court. [For additional information see Cornell Law School's Legal Information Institute's  article discussing the Eleventh Amendment posted on the Internet at: https://www.law.cornell.edu/constitution-conan/amendment-11/state-sovereign-immunity]

** Plaintiff also appealed the denial of his motions for recusal of certain judges and the disqualification of opposing counsel. 

*** Plaintiff contended that the Eleventh Amendment cannot bar the prospective relief he seeks — the termination of the University’s federal funding. The Circuit Court noted that the exception to Eleventh Amendment immunity for prospective relief applies only when a state official is sued, which Plaintiff had not done.

The decision is posted on the Internet at:
https://www.leagle.com/decision/infco20200609073

New York State Department of Civil Service's issues posting requirements for Civil Service Law Section 55-c eligible positions

The New York State Department of Civil Service has published General Information Bulletin 20-02, Posting Requirements for Civil Service Law Section 55-c eligible positions.

Text of General Information Bulletin 20-02 will be found at:

https://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB20-02.cfm

If you wish to print General Information Bulletin 20-02, the Department offers a version in PDF format at: https://www.cs.ny.gov/ssd/pdf/GIB20-02.pdf

Visit: https://www.cs.ny.gov/ssd/gibs.cfm to view earlier General Information Bulletins issued by the Department of Civil Service.

Test used by courts to resolve a former employee's constructive dismissal claim

The Plaintiff [Petitioner] in this action alleged that she had worked for the City of New York in a variety of positions and left her job in 2015 after complaining of gender-based harassment by her supervisor [S]. 

Petitioner subsequently brought a lawsuit against the Employer [Defendant] asserting a variety of claims, including suffering a hostile work environment, retaliation, and constructive discharge in violation of New York City'a Human Rights Law [NYCHRL], as well as common-law battery. At the close of Plaintiff's case at trial, the district court granted Defendant's motion for summary judgment as a matter of law to the with respect to Petitioner's constructive discharge claim while allowing her other claims to proceed. 

The jury found for Plaintiff on her hostile work environment and retaliation claims. The district court, however, denied Plaintiff's motion seeking reconsideration of its constructive discharge ruling and Plaintiff filed a timely appeal in the U. S. Circuit Court of Appeals, Second Circuit.

Petitioner argued that the standard for constructive discharge under the NYCHRL "is unclear and, consequently, [the Circuit Court] should certify this case to [New York State's] Court of Appeals for clarification as to the proper standard." The Circuit Court disagreed, holding that under any standard advanced by Petitioner the facts she relied upon in this action were insufficient to state a constructive discharge claim.*

Citing Crookendale v. New York City Health and Hospitals Corporation, 175 A.D.3d 1132, the Circuit Court said in Crookendale the court held that the standard for constructive discharge under the NYCHRL is whether "the defendant deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign.” In so stating, opined the Circuit Court, the Appellate Division "appeared to confirm that the standard remains unchanged under the amended NYCHRL and that it mirrors the federal standard."**

Observing that Plaintiff acknowledged that any standard for constructive discharge relevant to this case will require  deliberate actions taken by an employer to be sufficient to cause a reasonable person to feel compelled to resign,*** the Circuit Court concluded that the circumstances present in Petitioner's employment situation were not such that a reasonable person would have felt compelled to resign, indicating that:

1. After complaining that she was being subjected to S's harassment, Petitioner continued to receive scheduled raises and remained in her position;

2. Petitioner's complaints concerning S resulted in the initiation of an EEO investigation; and

3. Defendant assigned Petitioner to a different supervisor and offered her employment in at least one other position where she would not be supervised by S, the individual that was the genesis of her complain.

As to Petitioner's complaint that her work assignments were reduced, the Circuit Court said that element is typically not considered sufficient to compel a reasonable person to resign, citing Petrosino v. Bell Atl., 385 F.3d 210. The  Petrosino court noted that “the law is clear that a constructive discharge claim cannot be proved by demonstrating that an employee is dissatisfied with the work assignments she receives within her job title” and that a reduction in responsibilities would not “support [an employee’s] constructive discharge claim”.

After addressing additional arguments in support of her claim of constructive discharge advanced by Petitioner, the Circuit Court held that her constructive discharge claim "fails under any standard she proposes here" and affirmed the judgment of the district court. 

* In determining whether a hostile work environment has been established, courts consider the totality of the circumstances, including the nature, frequency, and severity of the conduct as well as whether the conduct interferes unreasonably with an employee's work performance. 

** The Circuit Court said "to be clear, New York courts have expressed the view, as Petitioner asserts, that the proper standard for constructive discharge claims under the amended NYCHRL has not been fully articulated."

** In Green v. Brennan, 136 S. Ct. 1769, the court held that the “constructive-discharge doctrine contemplates a situation in which an employer discriminates against an employee to the point such that his working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign”.

The decision is posted on the Internet at:
https://www.leagle.com/decision/infco20200603100