The statute of limitations to bring a timely action-at-law commences running when a final administration decision is made by the employer

The primary issue on appeal considered by the U.S. Circuit Court of Appeals, Second Circuit in this action was whether the district court erred in determining that the Petitioner’s ADEA claims were untimely.

For example, with respect to certain allegations of unlawful discrimination Petitioner's contended that "certain comments allegedly made by school officials about her before she retired ... establish a continuing violation of the ADEA and saves her claims from the statute of limitations."

Noting that in Delaware State College v. Ricks, 449 U.S. 250, the United States Supreme Court held "that the pendency of collateral review of an employment decision does not extend the time to file an EEOC charge under federal law." The Circuit Court opined that Ricks, which it viewed as "directly on point", held that the pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations periods for the purposes of bringing a timely judicial complaint.*

In the words of the court, "The existence of careful procedures to assure fairness in the tenure decision should not obscure the principle that limitations periods normally commence when the employer’s decision is made." Further, said the court, the denial of an administrative appeal "did not restart the clock" for the aggrieved party to bring a timely EEOC charge. 

* N.B. As the Appellate Division held in Matter of Cappellino v Town of Somers, 83 AD3d 934, neither does a request for reconsideration of a final administrative decision toll the running of the relevant statute of limitations.

Click HEREto access the Circuit Court's ruling.

School district directed to resume reimbursing its retirees' Medicare Part B surcharges

Pursuant to collective bargaining agreements [CBAs] between the School District [District] and the Congress of Teacher [Congress], an association representing district employees, the District agreed to provide health care benefits for active and retired employees and their spouses and dependents. 

Retired employees over age 65, however, were required to enroll in a Medicare Part B program [Part B] and the district reimbursed retirees the cost of Part B coverage.

Some retirees, based upon their household income, were subject to a surcharge in addition to the standard Part B premium. This surcharge was an income-related monthly adjustment amount and referred to as the "IRMAA". Prior to August 2018, the district reimbursed retirees for IRMAA surcharges in addition to their standard Medicare premium payments.

In response to the District's informing retirees that it would no longer reimburse them for IRMAA surcharges, certain retirees [Plaintiffs] commenced a CPLR article 78 proceeding seeking [1] a court order annulling the District's decision, contending that the District's discontinuing such reimbursements violated Chapter 729 of the Laws of 1994 (as amended by Chapter 22 of the Laws of 2007), the State's Retiree Health Insurance Moratorium Act [Act]* and [2] a court order reinstating the reimbursements.

The Supreme Court agreed that the District's discontinuation of its reimbursements of IRMAA surcharges violated the Act, granted the Plaintiff's petition, and directed the District to reinstate providing the reimbursement, plus making appropriate retroactive reimbursements. The District appealed.

Explaining that Act sets "a minimum baseline or 'floor' for retiree health benefits" which is "measured by the health benefits being received by active employees," the Appellate Division sustained the lower court's ruling. In other words, the Act does not permit an employer to whom the statute applies to provide its retirees with lesser health insurance benefits than it provides its active employees.

Citing Matter of Baker v Board of Educ., 29 AD3d 574, the Appellate Division opined that a school district may not diminish retirees' health insurance benefits unless it makes "a corresponding diminution in the health insurance benefits or contributions of active employees." 

In the words of the court, the purpose of the Act was to protect the rights of retirees who "are not represented in the collective bargaining process, [and] are powerless to stop unilateral depreciation or even elimination of health insurance benefits once the contract under which they retired has expired"**

It was undisputed both that the CBAs between the District and the Association did not address Part B or IRMAA reimbursements and that the district provided such reimbursements, even if, as it claims, it made such reimbursements inconsistently. 

The parties, said the court, conceded that the reimbursements were "retiree health insurance benefits that were voluntarily conferred as a matter of school district policy." Accordingly, the Appellate Division held that Supreme Court "correctly concluded that the discontinuation of IRMAA reimbursements was a matter subject to the moratorium statute."

Additionally, the Appellate Division noted reimbursing retirees for Medicare Part B premiums is not an improper gift of public funds in violation of Article VIII, §1, of the New York State Constitution," citing Baker v Board of Education, 29 AD3d 574.

The Appellate Division sustained the Supreme Court ruling, finding it to have correctly determined that the District's discontinuation of IRMAA reimbursements violated the Act and thus had properly granted the Plaintiffs' petition.

* The purpose of the moratorium statute was to tie retiree benefits to active employee benefits so that retirees could benefit from the collective bargaining power of the active employees.

** See Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134, quoting Assembly Memorandum in Support of Bill, 1996 McKinney's Session Laws of New York at 2050.

Click HERE to access the Appellate Division'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.

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.