Arbitrating an issue that was not an alleged violation of the relevant collective bargaining agreement

Are tenured public school teachers [Petitioners] bound by the results of an arbitration initiated by their union, the United Federation of Teachers [UFT], pursuant to Civil Service Law §209 to resolve an impasse over the implementation of the COVID-19 vaccine mandate? The relevant abitration "Impact Award", which Petitioners, employees of the New York City Department of Education [DOE], challenged in this hybrid Article 75/Article 78 proceeding, established a procedure for handling requests for religious and medical exemptions from a COVID-19 vaccine mandate.*

UFT had sought to negotiate the mandate's implementation with the DOE pursuant to their "mutual obligation" to "confer in good faith with respect to wages, hours, and other terms and conditions of employment," since the mandate was not part of the collective bargaining agreement [CBA] then in force. Ultimately UFT submitted a declaration of impasse to the State Public Employee Relations Board [PERB] due to several unresolved issues, including placement of unvaccinated employees on leave without pay.

The Appellate Division held that:

1. The Article 75 claims were properly dismissed by Supreme Court as Petitioners (a) lacked standing to challenge the Impact Award and (b) failed to join UFT as a necessary party;

2. The Article 75 claims failed on the merits; and

3. The Article 78 claims failed as Petitioners were unable to show that DOE made an error of law or acted irrationally.

The Appellate Division held that Supreme Court, in each proceeding, properly found the requirement that every DOE employee be vaccinated against COVID-19 - imposed by the vaccine mandate underlying these proceedings, the validity of which petitioners do not challenge here - is a "qualification of employment unrelated to job performance, misconduct, or competency" [citations omitted].

Although PERB appointed a mediator, UFT and DOE continued to disagree on many issues. The parties agreed to arbitrate those issues before their former mediator. The arbitrator issued the Impact Award, noting that the mandate "did not expressly provide for exceptions or modifications for those with any medical counterindications to vaccination or sincerely-held religious objections to inoculation."

Under the Impact Award, an employee granted an exemption or accommodation would be permitted to remain on the payroll, but would not be allowed "to enter a school building while unvaccinated, as long as the vaccine mandate is in effect," and "may be assigned to work outside of a school building ... to perform academic or administrative functions ...." Employees placed on leave without pay continued to be eligible for health insurance, but were prohibited from engaging in gainful employment during the leave period. If they became vaccinated during the leave period and provided proof by November 30, 2021, they would have a right of return to the same school within one week of submitting proof. 

Petitioners are similarly situated teachers employed by DOE. All received notification by email that they were being placed on Leave Without Pay (LWOP) status because they were not in compliance with DOE's COVID-19 Vaccine Mandate.

As a threshold matter, the Appellate Division rejected the dissent's assertion that only the legislature has the authority to impose a vaccine mandate as a condition of employment.

As to Petitioners' claims under CPLR Article 75, that the arbitrator acted in excess of jurisdiction and in violation of public policy, the Appellate Division opined that such claims failed not only on the merits but also due to Petitioners' lack of standing. When a union represents employees during arbitration, only that union - not individual employees - may seek to vacate the resulting award.

In addition, the Appellate Division found that Petitioners also failed to join UFT as a party and because the limitations period for Article 75 proceedings had expired, any action brought now against UFT would be untimely.

Further, said the court, as the arbitrator's authority did not arise from the terms of the existing CBA or from provisions of the Education Law governing disciplinary proceedings but was instead based on the Civil Service Law, Petitioners, who were not parties to the arbitration, cannot challenge the Impact Award because they cannot show that the arbitrator "exceeded his power".

The Appellate Division concluded that placing Petitioners' on leave for failure to prove vaccination, a condition of employment, is "unrelated to job performance, misconduct or competency" and does not constitute "teacher discipline".

Noting that "All concur except for Friedman, J. who dissents in part in a memorandum," the majority of the court held "Because [Petitioners] were given the opportunity to submit proof of vaccination, request religious or medical exemptions and accommodations if immunocompromised, or opt for extended benefits and severance on more favorable terms, their due process rights were not violated" and, in addition, Petitioners "were ably represented by their union in the mediation and arbitration that arose from the vaccine mandate." 

* The mandate was originally issued on August 24, 2021 by the Commissioner of the New York City Department of Health and Mental Hygiene.

Click HERE to access this decision by the Appellate Division posted on the Internet.

See, also, Matter of Athena Clarke, Petitioner-Appellant, et al.,
https://www.nycourts.gov/reporter/3dseries/2023/2023_00945.htm 

 

Summarily terminating an individual serving a "disciplinary probation period"

In Ryan v City of New York, 2023 NY Slip Op 00966, decided on February 21, 2023, the Appellate Division's decision states that an individual in "dismissal probation" status may be terminated without a hearing for any reason, or no reason at all, absent a showing that the individual was dismissed in bad faith or for an improper or impermissible reason. At the time the charges resulting in Ryan's termination were brought, Ryan was on "dismissal probation" pursuant to a negotiated discipline settlement agreement which resolved earlier disciplinary charges brought against him.

Other decisions addressing summarily dismissing an individual serving a period of "disciplinary probation" include:

Taylor v Cass, 122 A.D.2d 885: A County employee won reinstatement with full back salary and contract benefits because the court determined that he was improperly dismissed while serving a disciplinary probation period. The terms of Taylor’s disciplinary probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” at any time during his disciplinary probationary period. Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours”; and

Wright v City of New York, 192 A.D.2d 411: The Appellate Division ruled that an employee who had agreed to a disciplinary probation in settlement of disciplinary charges filed against him that provided that his probation status would be the same as any other probationary employee was not entitled to a pre-termination hearing when he was dismissed because of subsequent incidents. In other words, under the terms of relevant disciplinary probation the individual was to be treated as a "new employee" and he could be summarily terminated for any lawful reason.

In York v McGuire, 63 NY2d 760, New York State's Court of Appeals set out the basic rule concerning the dismissal of probationary employees upon their appointment to a position in the Classified Service 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.  

This reflects the view that the individual should be provided with a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. Should the appointing authority elect to dismiss such a probationary employee before he or she has completed the individual's required minimum period of probation, the individual is entitled to "notice and hearing" otherwise accorded a "tenured employee." 

Another element to consider: New York State's Military Law §243(9) provides, in pertinent part, in the event a probationary employee deployed on military duty before the expiration of his or her maximum period of the individual's probationary, the time he or she is absent on such military duty is to be credited as satisfactory service during such probationary period.

Click HERE to access the Ryan decision posted on the Internet.

Evaluating a defendant's motion for summary judgment in the course of Title VII litigation

The complainant [Plaintiff] in this Title VII action appealed the decision of a United States District Court to grant the Employer and several named employees of the Employer [Defendants'] motions for summary judgment on all of Plaintiff’s claims. 

Plaintiff had alleged that the Defendants had  (1) discriminated against him after one of his coworkers claimed he had engaged in workplace misconduct, including sexual harassment; (2) retaliated against him for appealing, pursuant to his union contract, subsequent adverse disciplinary decisions; and (3) violated his due process rights in the course of investigating and responding to the allegations of his alleged workplace misconduct. 

Reviewing the lower court's decision granting summary judgment to Defendants de novo, the Second Circuit Court of Appeals noted that summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." To establish a due process violation, said the court, a plaintiff must show that he possessed “a protected liberty or property interest” and that he was deprived of that interest “without constitutionally adequate process.” In addition, the Plaintiff must “establish [an individually named] defendant’s personal involvement in the claimed violation in order to hold that defendant liable in his individual capacity.”

The Circuit Court, observing that Plaintiff failed to address the district court’s dismissal of his intentional infliction of emotional distress and defamation claims in his brief, held that Plaintiff waived those issues for purposes of this appeal, citing Norton v. Sam’s Club, 145 F.3d 114. In Norton that Second Circuit Court held that “Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”

Here the Circuit Court concluded that "there is no genuine dispute of material fact and that Defendants are entitled to judgment as a matter of law on each of [Plaintiff's] discrimination, retaliation, and due process claims."

Addressing Plaintiff 's due process claims against individual Defendants, the Circuit Court affirm the district court's ruling on the basis of qualified immunity, explaining the “unlawfulness of their conduct”—if any—was not “clearly established at the time.” With respect to Plaintiff's Title VII retaliation claim, the Circuit Court  affirm the district court's ruling holding that Plaintiff had not been engage in any relevant Title VII-protected activity.

Click HERE to access the Circuit Court's decision posted on the Internet.

Woman arrested for allegedly stealing over $450,000 in New York State pension and Social Security payments

On February 23, 2023, New York State Comptroller Thomas P. DiNapoli, the U.S. Attorney for the Northern District of Georgia Ryan K. Buchanan and the Inspector General for the Social Security Administration Gail S. Ennis announced the arrest of a Georgia resident, Sandra Smith, for allegedly stealing over $450,000  in New York state pension and Social Security payments made to her deceased mother-in-law over a 16-year period.* 

Admitting to investigators that she stole the money, Sandra Smith was charged with 20 counts of wire fraud and 10 counts of theft of government funds. She was arraigned before U.S. Magistrate Judge Justin S. Anand.

“The defendant callously took advantage of her mother-in-law’s death to profit at the expense of New York’s retirement system and the Social Security Administration,” DiNapoli said. “She has now been brought to justice and we will seek full restitution. I thank U.S. Attorney Buchanan and the Social Security Administration Office of the Inspector General for their partnership on this matter.”

“Smith allegedly stole money that taxpayers and government employees paid into both retirement systems,” Buchanan said. “Money she was not entitled to. Through this joint effort, one more person who believed they could game the system has been caught and will be prosecuted.”

“For nearly 15 years, the beneficiary’s death was allegedly concealed by Ms. Smith so that she could illegally obtain Social Security benefits, which is a federal crime. These charges exemplify that my office will continue to pursue those who defraud the Social Security Administration,” Ennis said. “I thank the New York Office of the State Comptroller for investigating with us. I also thank the U.S. Attorney’s Office and Special Assistant U.S. Attorney Diane Schulman for prosecuting this case.”

Sandra Smith’s mother-in-law, Minnie Smith, was a longtime Brooklyn resident who had worked for the State Insurance Fund from 1985 until her retirement in 2005. She subsequently moved to Georgia to be close to family and died on Sept. 14, 2006. Her family did not notify the New York State and Local Retirement System (NYSLRS) or the SSA of her death and the retirement system received a change of address form purportedly signed and dated by “Minnie Smith.”  

At the time of Minnie Smith’s death in September 2006, Sandra Smith was her caretaker and handled her finances. As her caretaker, Sandra Smith had access to Minnie Smith’s bank account. After Minnie Smith died, Sandra Smith did not close the bank account. Instead, she kept Minnie Smith’s bank account open and NYSLRS and SSA continued to deposit funds into the account until early 2021. Sandra Smith knew exactly when those benefits would be deposited each month, and each month she allegedly withdrew the funds from the account almost as soon as they were deposited. 

When Minnie Smith's death was discovered, payments were stopped and the Comptroller DiNapoli’s Division of Investigations coordinated with the SSA-OIG, which was conducting its own review of the fraud.  

A total of $264,700 in retirement system payments and $194,351 in Social Security payments were deposited into Minnie Smith’s bank account from September 2006 through April 2021.

* The Comptroller noted that the charges filed against Sandra Smith in this case are merely accusations and Smith is presumed innocent unless and until proven guilty in a court of law.

###

Since taking office in 2007, Comptroller DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be reported to the Comptroller DiNapoli by using the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online using the Internet at https://www.osc.state.ny.us/investigations, or by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Disclosing complaints or allegations of a public officers' misconduct sought pursuant to the New York State Freedom of Information Law

In the Matter of New York Civil Liberties Union [CLU] v New York City Department of Correction [DOC], 2023 NY Slip Op 00930, the Appellate Division noted that the personal privacy exemption in Public Officers Law §87(2)* allows state agencies to protect sensitive matters "which are of little or no public interest, and which may include unsubstantiated allegations," citing Matter of New York Times Co. v City of New York Off. of the Mayor, 194 AD3d 157.

However, cautioned the court, "Public Officers Law §87(2) does not create a categorical or blanket exemption from disclosure for unsubstantiated complaints or allegations of uniformed officers' misconduct ... Documents concerning unsubstantiated complaints or allegations should be disclosed to the extent that they can be redacted to prevent an unwarranted invasion of personal privacy, including the removal of identifying details [citations omitted]."

In this instance the Appellate Division held that DOC did not establish that identifying details in the records or data requested by CLU could not be redacted to prevent an unwarranted invasion of privacy. 

Accordingly, the Appellate Division held that Supreme Court properly required DOC to disclose the requested records, subject to redactions with specific justification under Public Officers Law §87(2). Supreme Court, said the Appellate Division, also properly required that DOC sufficiently document its justification for redactions to facilitate potential in camera** review by Supreme Court.

Addressing CLU's request for an award of attorney's fees and costs, the Appellate Division opined that "as this proceeding at this stage concerns a novel interpretation of legislation that both repealed a statute and enacted new provisions to a longstanding statutory scheme", it cannot be said that DOC had no reasonable basis for denying access to the records at issue.

* See Public Officers Law §89(2), concerning personal privacy exceptions authorized by law. 

** Judicial review of a matter in the privacy of the judge's chambers."

Click HERE to access the Appellate Division's decision posted on the Internet.

See, also, Matter of Puig v New York State Police, https://www.nycourts.gov/reporter/3dseries/2023/2023_00258.htm