A court will not confirm an arbitration award where it is in explicit conflict with law, rule or regulation and the relevant policy concerns

In this proceeding brought pursuant to CPLR Article 75 to modify an arbitration award the Nassau Healthcare Corporation [Employer] appealed that portion of an arbitration award that ordered the Employer to reinstate three Petitioners* [Employees] to their former positions while the Employee's cross-appealed that part of the arbitration award providing for reinstatement without back pay.

The genesis of this action was the Employees being terminated by the Employer based upon an incident that occurred during which the Employees allegedly ignored approximately nine minutes of visual and audible alarms signaling that a ventilator-dependent resident was in respiratory distress.

Pursuant to the collective bargaining agreement, the Employees' collective bargaining representative filed a grievance challenging these terminations and the matter ultimately proceeded to arbitration. The Employees elected not to testify at the hearing.**

Following the hearing, the arbitrator issued an award finding that Employer did not sustain its burden of proving that the blaring alarm of the central alarm system throughout the unit, which signaled a respiratory emergency, was triggered. However, because of the employees' failure to testify at the hearing, the arbitrator drew an adverse inference against them on the factual issue of whether the beeping alarm coming from the ventilator machine in the patient's room itself, which did not necessarily signal an emergency, was audible to them at the nursing station.

The arbitrator ruled that the Employees should be reinstated to their former positions, but directed that they be reinstated without back pay. Supreme Court confirmed the arbitration award and the Employer appealed.

The Appellate Division granted the Employer's motion to vacate the arbitration and dismissed the Employee's cross-appeal seeking back-pay as academic. The court also awarded "one bill of costs" to the Employer, payable by the Employees.

The Appellate Division, citing Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, and Matter of Banegas v GEICO Ins. Co., 167 AD3d 873, pointed out that an arbitration award may be vacated if it violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on an arbitrator's power.

Considering the public policy exception, the Appellate Division commented that "a court may vacate an arbitral award where strong and well-defined policy considerations embodied in constitutional, statutory or common law prohibits a particular matter from being decided or certain relief from being granted by an arbitrator" and the focus of the analysis [in making that determination] is on the award itself." Quoting from New York State Correctional Officers and  Police Benevolent Assn. v State of New York, 94 NY2d at 327, the Appellate Division held that a court may vacate an award on public policy grounds "where the final result creates an explicit conflict with other laws and their attendant policy concerns,.

Here, opined the Appellate Division, the record reflects that after the employees were indicted on felony charges, the Office of Medicaid Inspector General [OMIG] notified the employees that they were excluded "from participation in the New York State Medicaid program based on New York State regulations authorizing the immediate exclusion of a person who has been charged with committing an act which would be a felony under the laws of New York and which relates to or results from," among other things, "the furnishing of or billing for medical care, services or supplies."

Citing 18 NYCRR 515.5(c), the court said that "[a] person who is excluded from the program cannot be involved in any activity relating to furnishing medical care, services or supplies to recipients of medical assistance for which claims are submitted to the program, or relating to claiming or receiving payment for medical care, services or supplies during the period." Further, the regulations also preclude reimbursement for medical care, services, or supplies provided by an excluded person.

Clearly the final result of the arbitrator's award in this case, reinstating the Employees to their former positions, "creates an explicit conflict with the subject regulations and their attendant policy concerns." Accordingly, under the particular circumstances of this case, the Appellate Division concluded that Supreme Court should have granted the Employer's motion to vacate that portion of the award providing for the reinstatement of the Employees, thereby mooting their claims to back salary.

* The three Employees involved were two registered nurses and a nurse aide

** Subsequently the Employees were indicted on several misdemeanor and felony charges, including criminally negligent homicide..

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06777.htm

 

Claim of having an "invisible" or "hidden" disability undermines unlawful disability discrimination complaint

New York State Division of Human Rights [DHR] found no probable cause to believe that the New York City Human Resources Administration [HRA] had discriminated or retaliated against the petitioner [Plaintiff] in violation of the New York State Human Rights Law and dismissed Plaintiff's compliant. Plaintiff filed a CPLR Article 78 petition challenging DHR's determination.

The Appellate Division unanimously affirmed DHR's ruling, explaining that the DHR's determination of no probable cause to find that HRA engaged in disability discrimination against Plaintiff was rationally based in the record and not arbitrary and capricious.

Plaintiff had described her traumatic brain injury condition as an "invisible" or "hidden" disability, meaning that the "symptoms are invisible" and "not immediately apparent." This, said the court, "undermines [Plaintiff's] interactive dialogue contention, and indeed her disability discrimination and reasonable accommodation claims, since it suggests that it would not have been evident to HRA staff interacting with her that she was in fact disabled."

Further, noted the Appellate Division, it also did not appear that 'Plaintiff ever substantiated her disability for the HRA staff she interacted with," such as by presenting of a doctor's note" nor did Plaintiff ever demonstrate to HRA that her disability reasonably warranted the accommodation she requested. Addressing Petitioner's "broader disability discrimination claim -- that HRA staff "mistreated her and sidetracked her application because of animus against disabled persons" -- the court again opined that such an assertion was undermined by her claim that her traumatic brain injury is "invisible."

Coupled with Plaintiff's own claim that "HRA staff mistreated everyone at the job center," the Appellate Division concluded that DHR had rationally determined that Plaintiff failed to show that she was treated adversely under circumstances warranting an inference of discrimination.

As to Plaintiff's allegations of retaliation, the court decided that DHR rationally determined that HRA did not retaliate against Plaintiff and that HRA's initial denial of her application was not arbitrary in view of the fact that is was accompanied by an explanation that Plaintiff had "failed federal poverty guidelines." Plaintiff, said the Appellate Division, presented no evidence that this explanation "was false or pretextual and that discrimination and/or retaliation was the real reason" for HRA's action.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06038.htm

New York State Bar Association Local and State Government Law Session Three: October 29

Topics in Municipal Labor Relations During the Pandemic:

Part One – Civil Service and Educator Layoffs and Reductions in Force

Part Two – FLSA Considerations in a Remote Working Environment

There are still seats available for the third session of the Local & State Government Law Virtual Fall Meeting Series. 

Register Now

A grievance filed pursuant to the relevant collective bargaining agreement bars the grievant's simultaneously submitting an Education Law §310 appeal concerning the same issue to the Commissioner of Education

Citing Matter of Board of Education, Commack UFSD v. Ambach, 70 NY2d 501, Interim Commissioner of Education Betty A. Rosa noted that "it is well-settled that a school employee who elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner [of Education] pursuant to Education Law §310 for review of the same matter."

In this appeal to Interim Commissioner of Education Rosa the educator [Petitioner] challenged a determination of the Board of Education [Board] not to appoint him to a coaching position. Petitioner also joined the individual [Individual] whom the Board appointed to fill the position as a respondent.*

Petitioner holds permanent certification in the area of physical education, is a tenured physical education teacher and served as coach of the School District's boys’ varsity basketball team for 11 consecutive seasons prior to 2019. In 2019 the district’s director of physical education, health, and athletics informed Petitioner of numerous concerns with his performance as a coach and identified a number of “standards” that Petitioner would be required to comply with “[i]f [he] wish[ed] to continue to be recommended for the position of Varsity Boys[’] Basketball Coach.”** Petitioner signed this "counseling memorandum" which reflected his receipt of the memorandum and his acknowledgement that it would be placed in his personnel file.

In April, 2019, Petitioner was advised in writing of [1] “the termination of [his] assignment as Boys[’] Varsity Basketball Coach, effective immediately” and [2] that the letter that it was issued pursuant to the Faculty Association’s collective bargaining agreement. Thereafter, the Board advertised for the position of boys’ varsity basketball coach.  Four individuals applied to the position, including Petitioner and Individual.  The Board interviewed all four applicants and determined that Individual was the best candidate for the position.  In September 2019 the president of the Faculty Association requested that the reasons for Petitioner’s non-appointment.

Individual was appointed by the Board to serve as the boys’ varsity basketball coach and this appeal ensued in which Petitioner argued that [1] The Board violated 8 NYCRR §135.4 in appointing Individual to the boys’ varsity basketball coach position and [2] sought an order annulling Individual's appointment and ordering the Board to appoint Petitioner as the boys’ varsity basketball coach for the 2019-2020 season.

Respondents argue that the appeal must be dismissed because [1] Petitioner had pursued a grievance under the relevant collective bargaining agreement and [2] the Board further contends that its determination to appoint Individual to the position was neither arbitrary nor capricious.

The Commissioner ruled that Petitioner's appeal must be dismissed for lack of jurisdiction, observing that on the same day Respondents were served with a copy of the this §310 Appeal Petitioner filed a grievance under the Faculty Association’s collective bargaining agreement.  In that grievance, Petitioner requests that the Board “rescind the appointment” of Individual and appoint Petitioner as the boys’ varsity basketball coach for the 2019-2020 season.***

Noting that Petitioner raised the same claims in his §310 appeal as he raised in his grievance, the Commission dismissed his appeal, explaining that under the holding of in Board of Education, Commack UFSD v. Ambach, Petitioner’s "initiation of the grievance process [had] divested the Commissioner of jurisdiction over his instant claims for purposes of an appeal pursuant to Education Law §310."

Further, opined the Commissioner, "[i]n any event, Petitioner’s claims would be dismissed under the doctrine of election of remedies," as his prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner, explaining that "[i]t would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum."

Finally, although the Commissioner dismissed Petitioner's appeal on procedural grounds, the Commissioner pointed out that Petitioner's "prior misconduct does not fit neatly within the 'coaching qualifications' set forth in 8 NYCRR §135.4(c)(7)(i)(c)," earlier decisions of the  Commissioner of Education indicate that the Commissioner "has previously declined to find a board of education’s refusal to appoint a certified teacher as a coach to be arbitrary or capricious where the teacher, by his own affirmative acts of misconduct, removed himself from eligibility for such appointment."

* Petitioner also joined the individual whom the Board appointed to fill the position as a respondent. Respondent Board and the individual are referred to collectively as “Respondents” where appropriate.

** Petitioner signed this memorandum, which reflected his receipt of the memorandum and his acknowledgement that it would be placed in his personnel file.

*** The record reflects that the Board denied Petitioner’s grievance during the pendency of this §310 appeal and subsequently Petitioner sought to submit the Board’s determination to arbitration.

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume60/d17927

IRS Webinars videos - Election workers

Check out this presentation on payroll reporting and learn about reporting and withholding requirements that apply to paid election workers at: Payroll Reporting for Election Workers