Diversity training programs

In an article captioned "Diversity Work, Interrupted",* Inside Higher Ed's daily news update dated October 7, 2020, reports that "some institutions have begun to cancel diversity, equity and inclusion programs in response to an Executive Order, "Executive Order on Combating Race and Sex Stereotyping," issued on  September 22, 2020.

Preliminary guidance from the State University of New York notes that the order "makes a passing reference to a carve out for education, stating (in full) that '[n]othing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts listed in section 2(a) of this order in an objective manner and without endorsement.'" Yet it is "unclear how the EO would define its 'objectivity' and 'non-endorsement' requirements." 

The Executive Order is posted on the Internet at https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/. 

* See https://www.insidehighered.com/news/2020/10/07/colleges-cancel-diversity-programs-response-trump-order?utm_source=Inside+Higher+Ed&utm_campaign=275597c9a5-DNU_2020_COPY_02&utm_medium=email&utm_term=0_1fcbc04421-275597c9a5-236506338&mc_cid=275597c9a5&mc_eid=bf9965f865

Employee terminated from employment after progressive disciplinary action taken by the appointing authority

Supreme Court denied the petition filed by the employee [Educator] pursuant to CPLR Article 75 seeking to vacate an arbitration award that, after a hearing pursuant to Education Law §3020-a, found the Educator guilty of the disciplinary charges filed against him and imposed the penalty of dismissal from employment.

Educator appealed but the Appellate Division unanimously affirmed the lower court's ruling.

Citing Cipollaro v New York City Dept. of Educ., 83 AD3d 543, the Appellate Division opined that "[t]]he penalty of termination of [Educator's] employment as a public school teacher does not shock one's sense of fairness."

The court explained that the record shows that Educator failed to instruct students during class time, instead using the time to perform personal tasks on Educator's own laptop computer, noting that the record showed that Educator "had previously been placed on notice that such conduct was not permitted, and prior disciplinary action had failed to remedy [Educator's] misconduct."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05474.htm. 

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Regulating partisan political activities of certain employees of a federal, state, municipal, educational or research entity

The Hatch Act, 5 U.S.C. §§7321-7326, regulates partisan political activities of most federal executive branch employees.

The Hatch Act [Act] also applies to officers and employees in the executive branch of state and local government whose principal employment involves an activity financed in whole or in part by federal loans or grants. 

However, certain state public officers such as the governor, the mayor of a city, and the elected head of an executive department are exempted from the Act, as are individuals employed by educational or research institutions which are supported in whole or in part by the State or a political subdivision of the State.

The Hatch Act permits public officers and employees to be members of a political party and even serve as officers in that party, but prohibits the use of their official authority or influence for the purpose of interfering with or affecting the results of elections or the nominations of candidates for those elective offices. The Act also bars direct or indirect coercion of public workers to make a loan or to contribute anything of value to an individual or a party or other organization for political purposes.

In Matter of Blackburne, 211 AD2d 13, [motion to appeal denied, 86 N.Y.2d 705], the Appellate Division opined that an individual otherwise entitled to an "administrative due process disciplinary hearing” such as one provided by a Taylor Law collective bargaining agreement [CBA] or by state law may be summarily removed from his or her position under certain conditions.

Blackburne had taken a leave of absence from his employment with a state department [Agency] to seek election to a seat on the City Council even though he had been warned, in writing, by the Agency that in so doing he would be in violation of the Hatch Act and his employment would be in jeopardy. Blackburne's was unsuccessful in his efforts to be elected to the City Council and he returned to his position with the Agency.

The United States Special Counsel subsequently filed a complaint with the Merit Systems Protection Board [Board] charging Blackburne with violating the Act. Following a hearing, the Administrative Law Judge [ALJ] issued a decision sustaining the charge and recommending that Blackburne be removed from his position with the Agency. Blackburne filed exceptions to the ALJ's rulings with the Board. 

Ultimately the Board adopted the ALJ's findings and recommendation and ordered the Agency to remove Blackburne from his position or be faced with the loss of Federal funds equal to two years of Blackburne's annual salary. The Agency summarily terminated Blackburne under color of the Board's determination.

Blackburne challenged the Agency's action, contending he could not be removed or be subjected to any disciplinary penalty absent his being accorded administrative due process mandated by the disciplinary grievance procedure set out the relevant Taylor Law CBA and demanded that the matter be submitted to arbitration as mandated by the CBA.

The Appellant Division disagreed, noting that although Blackburne's violation of the Act had not occurred during the performance of his job-related duties, such misconduct could be considered to be within the ambit of Article 33 of the CBA "since a public employee may be disciplined for off-duty misconduct." 

The court then opined that it need not decide that issue since, in its view, Blackburne's grievance was precluded by the CBA's exclusionary clause set forth in §34.1 of the CBA which bars arbitration of matters where "other means of resolution are provided ... by statute ... applicable to the State".

Finding that the Hatch Act accords a full evidentiary hearing to an accused violator and further provides for judicial review of Board orders through a proceeding in federal district court, the Appellate Division concluded that the parties to the CBA had not expressly, directly and unequivocally agree to submit the subject grievance to arbitration.

Further, said the court, "the arbitration of this grievance would offend public policy," citing Matter of Board of Education [Ramapo] 41 NY2d 527. The Appellate Division explaining that the only penalties for violating the Act are either [1] removal from office or employment, or [2] the subsequent loss of Federal funds otherwise available to the employer. In contrast, observed the court, under the CBA an arbitrator has a range of disciplinary options that may be imposed on the wrongdoer that are much less severe than termination of employment.

Consequently, the Appellate Division held that "to permit this matter to proceed to arbitration would significantly lessen the efficacy of the Hatch Act and frustrate its purpose and scope."

The Blackburne decision is posted on the Internet at https://www.leagle.com/decision/1995224211ad2d131221. 

 

Determining if an employee's injury sustained "in the line of duty" was an accident for the purposes of eligibility for accidental disability retirement benefits

The NYC Administrative Code §13-252 requires providing Accident Disability Retirement (ADR) benefits to an injured police officer when a medical examination shows that the officer is "physically or mentally incapacitated for the performance of city-service as a natural and proximate result of  [1] an accidental injury received in such city-service while a member" of the Pension Fund and [2] the "disability was not the result of willful negligence" on the part of the officer and [3] the officer "should be retired."

If the Medical Board so finds, the Police Pension Fund Board of Trustees [Board] then makes the final determination regarding the officer's entitlement to ADR and if it finds that ADR should be approved, it becomes effective after the last day a member is on the active NYPD payroll.

Responding to a family disturbance call, Petitioner [Police Officer] was exiting "the passenger side of his patrol van in haste" when his service firearm got caught on the seatbelt, and Police Officer fell to the ground, suffering spine and shoulder injuries. Police Officer's application for ADR benefits was rejected by the Board and Police Officer appealed the Board's determination. Supreme Court granted Police Officer's CPLR Article 78 petition and remanded the matter to the Board "for an award of [ADR] benefits." The Board appealed.

The Appellate Division unanimously reversed the Supreme Court's decision "on the law," denied Police Officer's petition and dismissed Police Office's CPLR Article 78 action.

The Appellate Division explained that Supreme Court erred in granting the Police Officer's petition and in annulling the Board's determination that Police Officer's injury did not arise from an unexpected accident or from a risk inherent in the job of being a police officer. Rather, said the court, "[t]he board correctly determined that [Police Officer's] injury was not caused by an accident as defined in the New York City Administrative Code and applicable case law.

Citing Lichtenstein v Board of Trustees of Police Pension Fund of Police Department of City of New York, 57 NY2d 1010, the Appellate Division observed that "not every line-of-duty injury will support an award of accidental disability retirement [and] an injury which occurs without an unexpected event as the result of activity undertaken in the [police officer's] performance of ordinary employment duties ... is not an accidental injury," sustaining the Board's conclusion that Police Officer's injury was not the result of "a sudden, unexpected event".

Quoting from Pratt v Regan, 68 NY2d 746, the Appellate Division observed that "the catching one's heel on a running board [of a motor vehicle] and thus losing balance may be a risk of the work performed [by an employee], but coming down hard upon the other foot in a pothole is not."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05136.htm

 

Former employee's application seeking the removal of a "problem code" from his personnel file rejected

Supreme Court dismissed an Article 78 petition filed by a former employee [Plaintiff] of the New York City Department of Education [DOE] challenging its placement of a "problem code" in Plaintiff's employment file and its refusal of his request to begin an "employment investigation" to remove the code. 

The Appellate Division unanimously affirmed the Supreme Court's dismissal of Plaintiff's petition.

Citing  Matter of Pepin v New York City Dept. of Educ., 148 AD3d 443, the Appellate Division held that DOE:

1. Was not prohibited from considering the Petitioner's service during his earlier probationary period in assessing his eligibility for employment; and

2. The assignment of a "problem code"* based upon the discontinuance of Plaintiff's earlier probationary employment was neither arbitrary nor capricious.

Further, opined the Appellate Division, absent a nomination for employment Plaintiff "lacks entitlement to an employment investigation to remove the code."

* In Pepin v New York City Dept. of Education, 45 Misc 3d 1221(A), DOE contended that it did not maintain "any list of persons ineligible for employment" with DOE and told Supreme Court it used "internal codes based on a past employee's employment record to reflect the reason the employee left [DOE's] service." 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05139.htm