Placing an employee on involuntary leave for allegedly being physically unfit to perform the duties of the position

New York City Office of Administrative Trials and Hearings Administrative Law Judge Julia H. Lee recommended that an NYPD Traffic Enforcement Agent be placed on involuntary leave of absence because she is physically unfit to perform the duties of her position. Undisputed evidence showed that the agent was unable to stand or sit for prolonged periods of time or to walk without an assistive device.

The ALJ Lee also held that the NYPD’s procedural error in failing to serve the Department of Citywide Administrative Services with notice of the proposed involuntary leave was not fatal to the case, as DCAS had delegated this personnel function to the Police Commissioner.

Click HERE to access Judge Lee's decision.

Recent decisions issued by the New York City Office of Administrative Trials and Hearings involving employees being placed on leave involuntarily

Placing an employee on involuntary leave for allegedly being physically unfit to perform the duties of the position

OATH Administrative Law Judge Julia H. Lee recommended that an NYPD Traffic Enforcement Agent be placed on involuntary leave of absence because she is physically unfit to perform the duties of her position. Undisputed evidence showed that the agent was unable to stand or sit for prolonged periods of time or to walk without an assistive device.

The ALJ Lee also held that the NYPD’s procedural error in failing to serve the Department of Citywide Administrative Services with notice of the proposed involuntary leave was not fatal to the case, as DCAS had delegated this personnel function to the Police Commissioner.

Click HERE to access Judge Lee's decision.

 

Placing an employee on involuntary leave for allegedly being mentally unfit to perform the duties of the position

Administrative Law Judge Kara J. Miller recommended that a Department of Buildings [DOB] site safety plan examiner be placed on involuntary leave of absence because she is mentally unfit for the position.

A psychiatrist retained by DOB found that the employee suffers from dementia, and her supervisors testified that her productivity did not meet the minimum standards and that she failed to follow direction despite repeated reminders.

The ALJ noted that DOB needs to trust the employee to do her job properly as a matter of public safety and found that the employee’s memory problems prevent her from performing complex analysis and synthesizing information to appropriately examine demolition and site safety plans.

Click HERE to access Judge Miller's decision.

Terminating an employee serving a disciplinary probationer period

Citing Matter of Verma v Department of Educ. of the City of N.Y., 192 AD3d 616, the Appellate Division observed that "a probationary employee may be terminated without a hearing for any reason or no reason at all, as long as the dismissal was not unlawful or in bad faith."*

In this action the Appellate Division opined that this standard applies where, as here, a police officer has been placed "on dismissal probation in accordance with a negotiated resolution of disciplinary charges", citing Matter of Cipolla v Kelly, 26 AD3d 171.

Noting that the Petitioner in this action failed to demonstrate bad faith because [1] the record contains uncontroverted evidence of Petitioner's admitted misconduct, which resulted in his being put on dismissal probation and [2] new disciplinary charges that were brought during his disciplinary probationary period.

In the words of the court, [1] the fact hat some of the new charges concerned alleged misconduct predating the period of dismissal probation is of no moment and [2] the fact that Petitioner's application for disability retirement, which he submitted before pleading guilty to the initial disciplinary charges, was later recommended for approval, "does not demonstrate his termination was in bad faith."

As to issue of the appropriateness of the penalty under the circumstances, the court concluded even assuming that the "shock the conscience" standard applies to probationary terminations, "the termination here does not shock the conscience."

Addressing Petitioner's argument that equitable estoppel barred his termination, the Appellate Division disagreed, ruling "equitable estoppel does not apply here, as the negotiated settlement placed him on notice that he could be dismissed at any time during the probationary period."

Accordingly, the court unanimously affirmed Supreme Court's granting the appointing authority's summarily terminating Petitioner from the police force during his dismissal probation period, without costs.

* In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

Click HERE to access the Appellate Division's decision.

Stipulation that the City's unilateral actions impacted current employees deemed substantial evidence sufficient to annul PERB's decision involving retired employees

General Municipal Law §207-a provides that a firefighter who is disabled in the performance of his or her duties entitlement to, among other benefits, the continued payment by his or her municipal employer of the full amount of his or her regular salary or wages until the disability has ceased." It further provides that in the event a firefighter is granted "an accidental disability retirement allowance," pursuant to Retirement and Social Security Law §§363, 363—c or similar accidental disability pension, the appointing authority shall pay "the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages" provided, however, that in any such case   such firefighter shall continue to receive from the municipality or fire  district by which he or she is employed, until such time as  he  or  she  shall  have  attained the mandatory service retirement age applicable to  him or her or shall have attained the age or  performed  the  period  of  service  specified  by  applicable law for the termination of his or her  service,  the  difference  between  the  amounts  received  under   such  allowance  or  pension  and  the  amount of his or her regular salary or  wages [Emphasis supplied].

The Uniformed Fire Officers Association of the City of Yonkers [UFOA] and Yonkers Firefighters Local 628, IAFF, AFL-CIO [Local 628] represent firefighters and fire officers that are employed by the Yonkers Fire Department. The City of Yonkers [City] had been paying all active bargaining unit members of Local 628 and UFOA night differential, check-in pay and holiday pay as part of their regular salary and wages. Throughout that period, retired firefighters and fire officers that receive supplemental wage benefits pursuant to General Municipal Law §207-a (2) have also received night differential, check-in pay and holiday pay as a component of their regular salary and wages.

In 2015, the City sent a letter to approximately 43 retired firefighters and fire officers who were receiving General Municipal Law §207-a(2) supplemental wage benefits, indicating that they had received benefit payments in excess of what they were entitled and that their future payments would be adjusted downward to omit night differential, check-in pay and holiday pay. Local 628 and UFOA separately filed improper practice charges with respondent Public Employment Relations Board (hereinafter PERB), the body charged with administering the Public Employees' Fair Employment Act, alleging that the City violated Civil Service Law §209-a (1) (a) and (d) by unilaterally ending the past practice of paying night differential, check-in pay and holiday pay to current members who would be eligible to receive supplemental wage benefits under General Municipal Law § 207-a (2) upon their future retirement.

The improper practice charges were consolidated for review and, following a two-day hearing, an Administrative Law Judge [ALJ] determined, among other things, that the City violated its obligation "to negotiate in good faith with the duly recognized or certified representatives of its public employees" by unilaterally ceasing its past practice of including night differential, check-in pay and holiday pay as part of the regular salary and wages for those current employees who, upon retirement, would be entitled to General Municipal Law §207-a(2) benefits

The City filed exceptions with PERB, which reversed the ALJ's determination, concluding that the City was not prohibited from taking unilateral action with respect to retired employees and that no proof was presented to show that it had impermissibly taken similar action against current employees.

Local 628 and UFOA thereafter filed a CPLR Article 78 petitions contending that, among other things, that PERB's determination impermissibly exceeded the scope of the City's exceptions and that it engaged in sua sponte fact-finding that ran counter to the parties' stipulations of fact. The City moved to dismiss the petitions. Supreme Court denied the City's motions to dismiss, finding that UFOA and Local 628  had raised an issue of substantial evidence, transferred the joined proceedings to the Appellate Division.*

The Appellate Division, noting that a public employer is required to negotiate in good faith with the bargaining representative of its current employees regarding the terms and conditions of vacated PERB's ruling, explained that "as the parties stipulated that the City's unilateral actions impacted current employees in the bargaining units, PERB's finding that the record was barren of proof on that point is not supported by substantial evidence, and it follows that PERB's determination must be annulled."

* See CPLR 7804 [g].

Click HEREto access the Appellate Division's decision.

Placing an employee on involuntary leave for allegedly being mentally unfit to perform the duties of the position

The New York City Office of Administrative Trials and Hearing Administrative Law Judge Kara J. Miller recommended that a Department of Buildings [DOB] site safety plan examiner be placed on involuntary leave of absence because she is mentally unfit for the position.

A psychiatrist retained by DOB found that the employee suffers from dementia, and her supervisors testified that her productivity did not meet the minimum standards and that she failed to follow direction despite repeated reminders.

The ALJ noted that DOB needs to trust the employee to do her job properly as a matter of public safety and found that the employee’s memory problems prevent her from performing complex analysis and synthesizing information to appropriately examine demolition and site safety plans.

Click HERE to access Judge Miller's decision.