Failing to appear for an examination trumps non-selection retaliation claim

Failing to appear for an examination trumps non-selection retaliation claim
Williams v City of New York, 38 A.D.3d 238

Gina Williams, complained that she was rejected for employment as a correction officer with the New York City Department of Corrections in retaliation for her filing a sexual harassment claim against her employer, the New York City Housing Authority.

The Appellate Division, First Department ruled that Williams failed to establish a prima facie claim of retaliation as there was no evidence of a causal connection between the filing of the harassment claim in 1998 and the denial of her appointment as a correction officer some two years later.

Significantly, Williams had been approved for appointment as a corrections officer on the condition that she take a psychological examination. She failed to appear for the examination.

This, said the court, was fatal to Williams’ lawsuit claiming retaliation since “even were it determined that there was a prima facie case of retaliation, [Williams] failed to show that the legitimate, nondiscriminatory reasons given by Corrections for their actions were mere pretext.”

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/sexual-harassment-claim-rejected.html

Eligibility for unemployment insurance determined by the law in place at the time of the filing of a claim for benefits

Eligibility for unemployment insurance determined by the law in place at the time of the filing of a claim for benefits
Dwyer v Commissioner of Labor, 273 A.D.2d 675

In June 1997 the Unemployment Insurance Appeals Board ruled that former Orange County Personnel Director Joseph M. Dwyer was entitled to unemployment insurance benefits.

The Board subsequently reopened its prior decision and on March 19, 1998 issued a ruling rescinding its June 1997 decision. This action reinstated a prior determination that Dwyer’s work as Orange County Commissioner of Personnel ending in November 1994 was excluded from coverage under Labor Law Section 565(2)(e) because it was a major nontenured policy making or advisory position. Dwyer did not appeal the Board’s March 1998 ruling.

On May 18, 1999 the Board agreed with the department that Dwyer had to pay a recoverable overpayment of $7,800 in unemployment insurance benefits. Dwyer appealed the May 1999 determination.

The Appellate Division affirmed the Board’s determination, noting that while Dwyer contended that the Board abused its discretion when it reopened its June 1997 decision in his favor, he did not appeal the March 1998 decision that held he was not eligible for unemployment insurance benefits. Accordingly, the court said it could not consider any challenge to the March 1998 ruling by the Board in this appeal.

The Appellate Division noted that while Section 597 was amended in 1998 so as to limit the recoverability of certain unemployment insurance overpayments, the legislation is not retroactive and applies only to benefit claims filed on or after May 19, 1998, the effective date of the amendment.

Accordingly, Dwyer was not covered by any of its provisions.

Veteran who served in time of war employed and characterized as an “independent officer” held not within the ambit of §75 of the Civil Service Law

Veteran who served in time of war employed and characterized as an “independent officer” held not within the ambit of §75 of the Civil Service Law
Matter of DiBattista v Mcdonough, 2011 NY Slip Op 00131, Appellate Division, Third Department

After the Chief of Police of the Town of Rosendale Chief of Police, Michael DiBattista, was notified by the Town Supervisor, Patrick McDonough, that he had not been reappointed to the position at the annual organizational meeting of the Town Board, DiBattista filed a petition pursuant to CPLR Article 78 seeking a court order reinstating him to the position of Chief of Police with back pay, longevity pay and compensatory time.

DiBattista argued that as an honorably discharged veteran of the armed services, he should not have been discharged without a hearing.*

Supreme Court determined that DiBattista was not entitled to the statutory protection because he did not hold his position as Chief of Police "by permanent appointment."

Noting that §16-3 of the Town’s Code provides that the Chief of Police "shall be appointed annually on January 1 of each year" and his or her term shall continue "until he [or she] is reappointed or succeeded," Supreme Court apparently deemed DiBattista to hold a “term appointment” and thus “permanent” for the purposes of the Civil Service Law only during the specified statutory term of the office.**

The Appellate Division said it agreed and affirm the lower court’s determination.

As to DiBattista’s “permanent status” in the position, the Appellate Division ruled that that time of the Board’s action, DiBattista “no longer held the status of an appointed official with tenure for a limited term; instead, he held his position as a holdover and was an at-will employee not entitled to the protections of Civil Service Law §75.”***

Additionally, the Appellate Division said that DiBattista “was further excluded from the protection of Civil Service Law §75 because his position as Chief of Police was independent in nature.”

Citing Matter of Nolan v Tully, 52 AD2d 295, 297 [1976], appeal dismissed 40 NY2d 844 [1976], lv denied 40 NY2d 803 [1976], the Appellate Division explained that Civil Service Law §75(1)(b) was intended to apply only to veterans in subordinate positions and does not include those who "may be characterized as independent officers." Based on the job description for Chief of Police, the Appellate Division concluded that the position clearly requires independent judgment and initiative and thus he was an “independent” officer.

As to DiBattista’s argument that, as a member of the Town of Rosendale Police Department, he had the right to a pretermination hearing under Town Law §155, the Appellate Division said that both Town Law §155 and Civil Service Law §75 relate to the discipline of civil service employees, they are in pari materia**** and are to be read in conjunction so that they complement one another.

However, the court explained, “it is apparent that Town Law §155 only applies to police department members who, unlike [DiBattista], hold permanent appointments. Ruling that DiBattista did not have property interest in the position, the Appellate Division concluded that he was not entitled to the protection of Town Law §155.

* Civil Service Law §75(1)(b) provides, in pertinent part, that a person holding a position by permanent appointment or employment in the classified service “who was honorably discharged or released under honorable circumstances from the armed forces of the United States having served therein as such member in time of war as defined in section eighty-five of this chapter” is subject to its provisions.

** Section 15.1(b) sets out another example of a statutory “term of office” whereby “The term of office of a [county] personnel officer shall be six years.”

*** Presumably §75 would obtain had the Town sought to remove DiBattista while he was serving as a “one-year appointee” in contrast to his serving in a “holdover” capacity.

**** Two laws relating to the same subject matter that must be analyzed with each other.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00131.htm

Denial of an Article 75 petition to vacate an arbitration award requires that the court confirm the award

Denial of an Article 75 petition to vacate an arbitration award requires that the court confirm the award
Matter of Perilli v New York State Dept. of Correctional Servs., 2011 NY Slip Op 00229, Appellate Division, Second Department

John Perilli appealed an order of the Supreme Court that denied his Article 75 petition challenging an arbitration award. The Appellate Division sustained the lower court’s determination and dismissed his appeal.

Perilli contended that the arbitrator had [1] prejudiced his rights; [2] improperly admitted evidence of prior grievances he had filed or that had been filed against him; and [3] the arbitrator’s award was against public policy.

The Appellate Division rejected each of Perilli’s contentions.

First the court ruled that Perilli had failed to meet his burden of proving "by clear and convincing evidence" that alleged impropriety or misconduct of the arbitrator prejudiced his rights or the integrity of the arbitration process or award.

As to the arbitrator’s admission of evidence of prior grievances, the court said that “the admission of evidence of prior grievances filed by and against [Perilli] did not constitute misconduct by the arbitrator,” explaining that "[a]n arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be."

Also rejected by the Appellate Division was Perilli’s motion to vacate the arbitration award on the theory that it violated public policy, holding that “ vacatur of the arbitration award is not warranted [as] the award did not violate a strong public policy, was not irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power."

The Appellate Division also commented that if a motion to vacate or modify an arbitration award is denied, the court, in the alternative, must confirm the award.

Accordingly, as Supreme Court had denied Perilli’s petition seeking to vacate the award, and the Appellate Division had concurred with the lower court’s ruling, the Appellate Division held that the arbitrator's award must be confirmed.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00229.htm

Duty to file disciplinary charges

Duty to file disciplinary charges
Anonymous v Nassau County, Supreme Court, Nassau County, Justice Phelan [Not selected for publication in the Official Reports]

From time to time the question of whether a public employer acted reasonably when it filed disciplinary charges against an individual is raised in the course of litigation. The Lindenhurst case, brought by a school teacher against whom disciplinary charges had been served and who then sued the district for malicious prosecution, raised this issue.

The Lindenhurst Union Free School District filed Section 3020-a disciplinary charges against one of its teachers, after it was reported that the teacher was a voyeur who looked at photographs of teenage girls to sexually satisfy himself.

A Nassau County police detective had found two envelopes of developed photographs in a parking lot. The pictures were of women, mostly teenagers, clothed or in bathing suits. The detective determined that the teacher, using a fictitious name and address, had brought the film to a processor for developing. Ultimately, the photographs were determined to have been take from the teacher's home.

No criminal charges were filed against the educator but the New York State Education Department was advised of the situation and provided with a copy of a statement in which the detective claimed the teacher had told him that he was a voyeur who looked at photographs to sexually satisfy himself. Eventually this information was transmitted to the superintendent and school board.

The educator was charged with (1) conduct unbecoming a teacher based on allegations that he took photographs of unknowing females for the purpose of using these photos for sexual gratification; and (2) lying to the Associate Superintendent about taking the photos .... As a result the teacher was suspended with pay but ultimately the board dismissed the Section 3020-a charges and reinstated him to his position.

Contending that the board’s action violated his civil rights [42 USC 1983], the teacher sued the district and its superintendent in federal court. Federal District Court Justice Joanna Seybert dismissed his federal claims, holding that the actions taken by the district were reasonable. In the words of the court, [t]he information these defendants had obtained led them to take appropriate and reasonable actions under the circumstances as they knew them to be.

The educator, however, had also filed a state law claim against the district and the superintendent for malicious prosecution. The county and the detective were also named as defendants in the State action. State Supreme Court Justice Thomas P. Phelan ruled that the teacher’s state law claims against the district and the superintendent were barred by the doctrine of collateral estoppel as the federal court clearly determined that defendant School District and Superintendent acted properly in preferring charges pursuant to Education Law Section 3020-a against the teacher.

Justice Phelan said that he agreed with the district’s argument that presented with information that a school teacher engaged in sexual self-stimulation with the aid of photographs of school-aged children -- whether ultimately true or not -- the defendants would have been remiss in their duties had they taken no action at all.

Was the district required to file disciplinary charges against the educator after receiving the report from the Education Department? Not necessarily, as the decision by the Commissioner of Education in the Covino case indicates [Matter of Covino, Decision 11227]. The Covino decision holds that a board is not required to serve disciplinary charges against an individual simply because it is advised of allegations of wrongdoing on the part of the employee.

A parent complained that Covino, a teacher-coach, had been involved in the hazing of a student by other students. The parent wanted the school board to dismiss Covino and a bus driver who was alleged to have been present during the incident. The board’s response to the parent’s complaint was to suspend the teacher from his coaching duties. It did not initiate formal disciplinary action against either the teacher or the driver.

This, however, did not satisfy the parent and he appealed to the Commissioner of Education in an effort to obtain an order requiring the board to initiate disciplinary action seeking removal of the teacher.

Noting that a resident of a school district may file disciplinary charges against a tenured teacher, the Commissioner said that a board of education must have a reasonable basis for its decision whether or not to proceed with the disciplinary action.

The Commissioner decided that board’s investigation of the incident, followed by its relieving the teacher of his coaching duties was sufficient under the circumstances. He ruled that the board had a reasonable basis for the action it took and its decision not to pursue further disciplinary action was neither arbitrary nor capricious.

The test set out by the Commissioner in the Covino decision: did the board investigate the allegations and then make a reasonable determination whether or not to take further action?

The employer, once having completed its investigation, essentially has the following options available to it:

1. Decide that filing disciplinary charges or taking other administrative action against the individual is unwarranted;

2. Decide that there is insufficient evidence to justify the filing of disciplinary charges but that some other administrative action, such as counseling the individual, is appropriate.

3. Decide that filing disciplinary charges against the individual is appropriate under the circumstances.

If the employer determines that it is appropriate to bring disciplinary action against an employee, may it demand that the individual resign or be served with charges? In a word: YES!

In Rychlick v Coughlin, 63 NY2d 643, a case involving a tenured State employee, the Court of Appeals said the employer could threaten the employee with disciplinary action if he or she did not resign. The court pointed out that threatening to do what the appointing authority had a legal right to do -- file disciplinary charges against the individual -- did not constitute coercion so as to make the resignation involuntary.

Sometimes the employer will agree not to reveal the reasons underlying its demanding the employee’s resignation to potential employers in the future. The employer’s ability to agree that the reasons leading to the demand for the resignation shall remain confidential has been tempered, however.

In response to the so-called silent resignation in cases involving child abuse in an educational setting by a school employee, the New York State Legislature has declared that making an agreement to maintain confidentiality in resignation situations where allegations of child abuse have been leveled against an individual is against the public policy of this State.

A new provision, Education Law Section 1133, bars a school administrator or superintendent from agreeing to withhold the fact that an allegation of child abuse in an educational setting was involved in the separation of the employee or volunteer in return for the individual’s resignation or agreement to a suspension from his or her position.

A violation of Section 1133 is a Class D felony and, in addition, shall also be punishable by a civil penalty not to exceed $20,000.

In addition, Subdivision 3 of Section 1133 provides that “[a]ny superintendent of schools who in good faith reports to law enforcement officials information regarding allegations of child abuse or a resignation as required by this article shall have immunity from any liability, civil or criminal, which might otherwise result by reason of such actions.”
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The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State, is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic handbook.