Employer's failure to explain selection decision to rebut eligible's claim of denial promotion negates summary dismissal of employee's petition

Employer's failure to explain selection decision to rebut eligible's claim of denial promotion negates summary dismissal of employee's petition
Baker v Elmira, 271 AD2d 906

What may individual who believes that he or she has been passed-over for appointment to a position in the competitive class for political reasons do in such a situation? James A. Baker, Sr., decided that he would sue the City of Elmira when he was not selected for promotion to fire lieutenant for what he alleged were partisan political reasons.

Baker, an Elmira firefighter since 1974, took and passed the promotion test for fire lieutenant. The first four firefighters on the list were promoted before the list expired; Baker was fifth on the list.

Prior to the expiration of the list Fire Chief Donald Harrison told the Elmira city manager W. Gregg LaMar that there would soon be additional vacancies as result of retirement. Commenting that Baker was next on the list, he recommended three appointments: Baker, Eugene Ottaviani and Patrick Shaw. All had identical examination and seniority scores. Ottaviani was promoted.

Baker sued, submitting affidavits indicating that he was not being promoted because of his political affiliation. Although a State Supreme Court judge summarily dismissed Baker’s complaint, the Appellate Division reversed. Quoting from McManus v Grippen, 244 AD2d 632, the court said “it was incumbent upon [the defendant] to come forward with admissible evidence showing that plaintiff [‘s] political affiliations and activities did not play a substantial part in its decision.”

While Elmira made a prima facie showing of the propriety of the promotion, it provided no explanation as to why LaMar chose one eligible over the other candidates, since they were all equally qualified. This, said the court, meant that summarily dismissing the case was improper.

Employee’s failure to provide an adequate urine sample attributed to employer’s failure to comply federal procedures rather than employee misconduct

Employee’s failure to provide an adequate urine sample attributed to employer’s failure to comply federal procedures rather than employee misconduct
Dept. of Sanitation v Anonymous, OATH Index No. 765/11

OATH Administrative Law Judge Kevin Casey dismissed a charge alleging that a sanitation worker had refused to submit to a random drug test. The worker, who became ill during the testing procedure and was later diagnosed with a medical condition, was unable to provide a sufficient urine sample, despite repeated attempts.

ALJ Casey found the department failed to provide the worker with forty ounces of water to drink over a period of three hours, as required by federal regulation. Hence, the employee's failure to produce sufficient urine for testing was not misconduct.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-765.pdf

Firefighter’s training exercise injury not an accident for disability benefit purposes

Firefighter’s training exercise injury not an accident for disability benefit purposes
Matter of Stimpson v Hevesi, 38 AD3d 979

Christopher W. Stimpson, a firefighter employed by the Village of Scarsdale Fire Department in Westchester County, was injured during a training exercise.

His foot became wedged while participating in a simulation rescue, resulting in an injury to his right knee. Stimpson’s application for accidental disability retirement benefits was denied on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law Section 363.

The Appellate Division affirmed the Retirement System’s determination, ruling that an accident within the meaning of the Retirement and Social Security Law is a "'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." In this instance, said the court, the injury Stimpson suffered "was the result of a training program [incident] constituting an ordinary part of [his] job duties and the normal risks arising therefrom."

Accordingly, the court confirmed the System’s ruling and dismissed Stimpson’s petition.

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/injury-during-training-exercise-ruled.html

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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here: http://section207.blogspot.com/2011/03/v-behaviorurldefaultvml-o.html
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Salary upon appointment

Salary upon appointment
Golanec v Culross, 272 AD2d 471

Rye police officer Jeffrey Golanec claimed that in consideration of his experience as a police officer, he was entitled to be appointed at a higher salary step of the salary grade of his position rather than at the entrance level rate.

The Appellate Division, sustaining a lower court ruling, pointed out that Golanec failed to prove that other police officers with the same or similar training and experience as police officers were appointed at higher starting salary levels.

Had Golanec been able to demonstrate that other police officers having training and experience similar to his were initially appointed at a higher salary, presumably the court would have required the appointing authority to explain why it had appointed him at the entrance level of the pay scale.

Health insurance coverage for domestic partners

Health insurance coverage for domestic partners
Matter of Putnam/Northern Westchester Bd. of Coop. Educ. Servs. v Westchester County Human Rights Commn, 2011 NY Slip Op 01030, Appellate Division, Second Department

A woman employed by a school district that provides its employees with health insurance coverage through a BOCES "Health Benefits Consortium" had lived with a male partner in a romantic relationship for more than 30 years. Never married, she and her partner registered their domestic partnership with Westchester County in 2006

When the Consortium’s Board voted to extend dependent health care benefits to same-sex domestic partners of “member employees,” the employee asked for "Domestic Partner health coverage" for her opposite-sex domestic partner pursuant to the Plan's "Domestic Partner Policy." The Consortium, however, advised the employee that it had denied her request because its “Domestic Partner Policy” only applied to those in a same-sex domestic partner relationship.

The employee filed a complaint with the Westchester County Human Rights Commission alleging that she had been unlawfully discriminated against on the basis of her sexual orientation and her marital status in violation of the Westchester County Human Rights Law §700.03.

Ultimately the Westchester County Human Rights Commission agreed with the employee, finding that the Consortium had violated §700.03 by unlawfully discriminating against the employee on the basis of her sexual orientation and marital status.

The Commission ruled that the employee was entitled to domestic partner health care benefits for her opposite-sex domestic partner to the same extent "as if he were her same-sex domestic partner." It enjoined the Consortium from maintaining its policy of extending health care benefits to same-sex domestic partners and not to opposite-sex domestic partners and awarded the employee $24,178 in “damages.”

The Appellate Division annulled the Commission’s determination.

As to the employee's claim of discrimination on the basis of marital status, the court held that the employee had “failed to meet her burden of demonstrating a prima facie case of discrimination based upon marital status because eligibility for the domestic partner health care benefits for which she applied ‘[does] not turn on the marital status’ of the employee.”

Turning to the employee's allegation that she had been the victim of unlawful discrimination based on her sexual orientation, the court said that the employee had established a prima facie case by demonstrating that “the provision of health care benefits to same-sex domestic partners and denial of such benefits to her and her opposite-sex domestic partner” sets out an inference of discrimination.

Accordingly, the Appellate Division said that the burden shifted to the Consortium to set forth a legitimate, nondiscriminatory reason for its decision to extend domestic partner benefits only to same-sex couples.

The court decided that the Consortium had, in fact, met its burden by demonstrating that the reason for its offering health care benefits only to same-sex domestic partners is that same-sex domestic partners cannot obtain benefits offered by the Board to an employee's spouse because those in a same-sex domestic partner relationship cannot lawfully marry in this State at this time. The decision notes that the Consortium’s “Domestic Partner Policy” stated that it may be rescinded in the event that same-sex marriage becomes legal in the participant's "state of residence."

This, the Appellate Division concluded, set out a legitimate, nondiscriminatory basis for the Consortium's decision to offer dependent health insurance coverage only in situations involving same-sex couples in consideration of the current impediment to same-sex couples marrying in New York State.

In contrast, participating employers in the New York State Health Insurance Plan [NYSHIP], if the participating employer has elected to offer “domestic partner” health insurance coverage to its employees and their dependants, dependent coverage is available to both an employee’s same-sex domestic partner or an employee's opposite-sex domestic partner.

A domestic partnership, for the purposes of eligibility for coverage in NYSHIP, is one in which the participant and the participant’s partner are 18 years of age or older, unmarried and not related in a way that would otherwise bar marriage, living together, involved in a lifetime relationship and financially interdependent. To enroll a domestic partner in NYSHIP the participant must have been in the partnership for at least six months and be able to provide "proof of residency and financial interdependence."

In addition, persons who are party to a same sex marriage, validly entered into in a jurisdiction where same sex marriage is permitted, are eligible for spousal benefits.

NYSHIP also advises that "Under the Internal Revenue Service (IRS) rules, the fair market value of the health insurance benefits is treated as income for tax purposes when a person who is not a qualified dependent under federal IRS rules is covered in NYSHIP."

NYSHIP also notes that the employee’s extra cost for domestic partner coverage "cannot be paid with pre-tax dollars" and suggests that participants consult with his or her tax advisor concerning how enrolling his or her domestic partner will affect his or her personal income tax liability.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01030.htm
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