An individual's General Municipal Law §207-c benefits may be discontinued where the decision to do so is supported by substantial evidence

An individual's General Municipal Law §207-c benefits may be discontinued where the decision to do so is supported by substantial evidence

Matter of Cordway v Cayuga County, 2018 NY Slip Op 04873, Appellate Division, Fourth Department

Petitioner, a deputy sheriff, commenced a CPLR article 78 proceeding challenging the determination that terminated the disability benefits the deputy sheriff had been receiving pursuant to General Municipal Law §207-c. The Hearing Officer issued a report recommending that Petitioner's continued receipt of benefits be terminated. Contrary to Petitioner's contention, the Appellate Division found "no basis to disturb the Hearing Officer's determination terminating the benefits."

Although Petitioner presented evidence supporting his contention that his injuries and ailments were causally related to the work-related, the Hearing Officer was entitled to weigh the parties' conflicting medical evidence and to assess the credibility of the witnesses. Where the evidence is conflicting and there is room for a choice, a court may not weigh the evidence or reject the Hearing Officer's decision where his or her determination is supported by substantial evidence

Citing Matter of Park v Kapica, 8 NY3d 302, the court opined that an employer's "initial award of Section 207-c benefits does not require the continuation of such benefits inasmuch as "[t]he continued receipt of Section 207-c disability payments is not absolute."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04873.htm

Employer's termination of a biologically male employee transitioning from male to female held unlawful discrimination on the basis of sex

Employer's termination of a biologically male employee transitioning from male to female held unlawful discrimination on the basis of sex

EEOC v R.G. and G.R. Harris Funeral Home., USCA, 6th Circuit, No. 16-2424

Plaintiff, born biologically male, while living and presenting as a man, worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. [Funeral Home], a closely held for-profit corporation.

In an unlawful discrimination complaint filed with the Equal Employment Opportunity Commission [EEOC] Plaintiff alleged that the Funeral Home terminated her* after she had advised the Funeral Home that she intended to transition from male to female and would commence presenting herself and dress as a woman while at work.

In the course of EEOC investigation of Plaintiff's complaint it found that the Funeral Home provided its male public-facing employees with clothing that complied with the company’s dress code while female public-facing employees received no such allowance.

The EEOC subsequently brought suit against the Funeral Home in which the EEOC charged the Funeral Home with violating Title VII of the Civil Rights Act of 1964 [Title VI] by (1) terminating Plaintiff's employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes; and (2) administering a discriminatory-clothing-allowance policy.

In its motion for summary judgment, EEOC argued that it was entitled to judgment as a matter of law on both of its claims.

The Funeral Home, in contrast, contended that it had not violate Title VII by requiring Plaintiff to comply with a sex-specific dress code that it asserts equally burdens male and female employees, and, in the alternative, that Title VII should not be enforced against the Funeral Home because requiring the Funeral Home owners to employ Plaintiff while she dresses and represents herself as a woman would constitute an unjustified substantial burden upon the Funeral Home’s owner's sincerely held religious beliefs in violation of the Religious Freedom Restoration Act [RFRA].

The federal district granted summary judgment in favor of the Funeral Home on both claims.

The Circuit Court of Appeals reversed, holding that:

[1] the Funeral Home engaged in unlawful discrimination against Plaintiff on the basis of her sex; and 

[2] the Funeral Home has not established that applying Title VII’s proscriptions against sex discrimination to the Funeral Home would substantially burden its owner's exercise of their religious beliefs and, therefore, the Funeral Home was not entitled to a defense under RFRA.

Further, said the Circuit court, (a) even if the Funeral Home's owner's religious exercise were substantially burdened, the EEOC established that enforcing Title VII is the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination against Plaintiff and (b) that the EEOC may bring a discriminatory-clothing-allowance claim in this case because such an investigation into the Funeral Home’s clothing-allowance policy was reasonably expected to grow out of the original charge of sex discrimination that Plaintiff submitted to the EEOC.

The Circuit Court issued a judgment to the EEOC on its unlawful-termination claim, and remanded the case to the district court "for further proceedings consistent with this opinion."

* The Circuit Court used female pronouns in its decision in accordance with the preference Plaintiff expressed through her briefing to this court.

The decision is posted on the Internet at:

https://cases.justia.com/federal/appellate-courts/ca6/16-2424/16-2424-2018-03-07.pdf?ts=1520443817

Terminated educator alleges that her employer breached the employment agreement and negligently terminated her

Terminated educator alleges that her employer breached the employment agreement  and negligently terminated her

Morrison v Buffalo Board of Education, et al, USCA, 2nd Circuit, No. 17-3496-cv

A school administrator, [Plaintiff] terminated from her position, sued the City of Buffalo Board of Education [District] and numerous individual administrators alleging breach of her employment agreement [Agreement] and "negligent termination."

The genesis of Plaintiff's termination was her alleged failure to obtain the professional certifications required by the Agreement. 

Although Plaintiff acknowledged that she held only a Florida certification at the time she applied for a position with the District, she contended that she “truthfully declared” her lack of a valid New York certification during the application process and was hired nonetheless." Plaintiff further alleged that when, during her first week on the job, she was directed to apply for interstate certification reciprocity, she promptly did so and said that  "the New York State Department of Education awarded her a conditional School Building Leader certificate [and] she was directed to apply for a School District Leader  internship certificate, which certificate she received in March 2014.

Accordingly, Plaintiff asserted that she was "adequately certified" at the time of her termination in April 2014.

The Circuit Court vacated that part of the district court's decision concerning Plaintiff's  breach of contract claim, affirming the lower court's ruling "in all other respects," explaining that "In dismissing the breach of contract claim, the district court here determined that [Plaintiff] failed to satisfy a contractual condition requiring her to maintain certain professional certifications and, thus, that [the District] did not violate the Agreement by terminating her employment. Because the first conclusion cannot be reached as a matter of law on the present record, [district court] dismissal was premature." 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/cdbc3784-2c1b-4017-b7d6-e13c18d43d65/21/doc/17-3496_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cdbc3784-2c1b-4017-b7d6-e13c18d43d65/21/hilite/

Placing an employee on involuntary leave pursuant to Civil Service Law §72.5

Placing an employee on involuntary leave pursuant to Civil Service Law §72.5

NYC Office of Administrative Trials and Hearings, OATH Index No. 1865/18

Based on statements a customer service representative [Anonymous] was reported to have made to co-workers, the Appointing Authority [Authority] placed Anonymous on involuntary leave pursuant to Civil Service Law §72.5 in consideration of safety concerns about Anonymous' presence at the work place.

Anonymous filed a timely objection to being placed on §72.5  leave, typically refered to as "emergency leave." After a two-day hearing during which Authority presented the testimony of a psychiatrist, who examined Anonymous and concluded he was unfit, as well as the testimony of two of Anonymous’ co-workers and Anonymous' testimony on his own behalf and the testimony of a psychiatrist called by Anonymous a witness, OATH John B. Spooner found that Authority's failed to meet the standard justifying its placing Anonymous on emergency leave.

Judge Spooner said the Authority did not prove that [1] it had probable cause to believe that Anonymous was dangerous or [2] his presence in the workplace would “severely interfere" with its operations, or [3] Anonymous was likely to be violent. Accordingly, said the ALJ, Authority failed to demonstrate that placing Anonymous on an “extraordinary” pre-hearing suspension authorized by §72.5 was necessary.

Judge Spooner recommended that Authority's petition be dismissed and that Anonymous be awarded back pay for the period of pre-trial leave. Authority, however, rejected the ALJ’s recommendation, finding that it had proved that, due to his psychiatric disorders, Anonymous was unfit to work. Authority also found that Anonymous was not entitled to back pay for the period of prior to his hearing as it had a sufficient basis to institute emergency leave.*

The "standard Section 72 procedure" is triggered by the appointing officer's determina­tion that the individual is physically or mentally unable to perform his or her duties and should be placed on leave of absence and CSL Section 72.1 requires completing a number of procedural steps before the individual may actually be placed on Section 72 leave over his or her objections.

 
In contrast, Section 72.5 relied upon by Authority in Anonymous' situation, essentially sets out an exception to the "standard procedure" that allows it to be truncated only in the event the appointing authority determines that there is probable cause to believe that the continuation of the individual on the job poses a danger to persons, property or the agency's operation.

The "standard procedure" followed under Section 72 may be summarized as follows:

1. The appointing authority determines than an employee is unable to perform the duties of his or her position by reason of an ordinary disability.

2. The appointing authority requires such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or munici­pal commission having jurisdiction.

3. The appointing authority provides the employee and the civil service department or commission, in writing, the facts that constitute the basis for the judgment that the employee is not fit to perform the duties of his or her position prior to the medical examination.

4. If the medical officer certifies that the employee is not physically or mentally fit to perform the duties of his or her position, the appointing authority notifies the em­ployee of any proposed Section 72 leave and the proposed date on which such leave is to commence.

5. The employee is also advised of his or her right to object to his or her placement on the proposed Section 72 leave of absence and to request a hearing.

6. If the employee requests a hearing, the appointing authority is to give the employee a hearing within 30 days of the receipt of the request. The appointing authority is also required to provide the employee and the employee's personal physician or authorized representative, with copies of all diagnoses, test results, observations and other data supporting the appointing authority's decision.

7. The employee is not to be placed on leave until a final determination is made by the appointing authority after the hearing is held.

As is typical in administrative actions of this type, the appointing authority has the burden of proof and must provide the evidence that the employee is mentally or physically unfit to perform his or her duties.

Following the receipt of the hearing officer's findings and recommendations, the ap­pointing authority may decide to (1) uphold the original proposed notice of leave of absence, (2) withdraw such notice or (3) modify the notice as may be appropriate.

If the final determination is to place the individual on Section 72 leave, the employee is to be advised of his or her right to appeal the determination to the civil service commis­sion having jurisdiction as provided by CSL Section 72.3.

* §75.2, in pertinent part, provides "5. Notwithstanding any other provisions of this section, if the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations, it may place such employee on involuntary leave of absence immediately; provided, however, that the employee shall be entitled to draw all accumulated unused sick leave, vacation, overtime and other time allowances standing to his or her credit...."

The Anonymous decision, including Authority's justification for rejecting the OATH ALJ's recommendation, is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1865.pdf

Separation of Powers

Separation of Powers

Garcia v New York City Dept. of Health & Mental Hygiene, 2018 NY Slip Op 04778, Court of Appeals

Among the issues addressed by the Court of Appeals in this action was an alleged violation of the doctrine of Separation of Powers.

In response to the Appellate Division's holding that the adoption of certain administrative rules violated the separation of powers doctrine, New York City argued that the legislature has properly delegated to New York City's Board of Health, through Administrative Code §17-109, the necessary authority to promulgate the rules at issue.* The City contended that the Appellate Division inappropriately applied the so-called Boreali factors** "to second-guess the manner in which the Board exercised its regulatory authority, instead of merely determining whether the Board possessed the requisite authority to promulgate the rules in the first instance."

The Court of Appeals agreed. Citing Matter of NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv., 27 NY3d 174, the court explained that "The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions." This principle, "implied by the separate grants of power to each of the coordinate branches of government, requires that the Legislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies."

Separation of powers challenges, noted the court, "often involve the question of whether a regulatory body has exceeded the scope of its delegated powers and encroached upon the legislative domain of policymaking."

In this regard an administrative agency can adopt regulations that go beyond the text of the relevant legislation, "provided they are not inconsistent with the statutory language or its underlying purposes." On the other hand, as it ruled in Greater N.Y. Taxi Assn., 25 NY3d at 609, the Court of Appeal said that "The guiding legislation 'need not be detailed or precise as to the agency's role' and, as an overarching principle, 'common sense must be applied when reviewing a separation of powers challenge.'"

The "difficult-to-define line between administrative rule-making and legislative policy-making" was clarified [by Boreali] by articulating four "coalescing circumstances" relevant to rendering such a determination as follows:

1. Did the regulatory agency balanced costs and benefits according to preexisting guidelines rather than make value judgments requiring difficult and complex choices between broad policy goals to resolve social problems;

2. Did the regulatory agency "merely filled in details of a broad policy" or did it create its own comprehensive set of rules without benefit of legislative guidance;

3. Had the legislature been unsuccessful in its efforts to enact laws pertaining to the issue; and

4. Did the regulatory agency use "special technical expertise in the applicable field."

Ultimately any Boreali analysis, said the court, "should center on the theme that it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends" as "A rule has the force of law, but it is not a law; rather, it implements or applies law or policy" and the administrative body must act within the limitations of its legislatively-delegated powers.

Rejecting the Petitioners' separation of powers challenge, the Court of Appeals emphasized that a Boreali analysis is not aimed at determining whether a regulatory agency adopted the most desirable method or type of regulation and the factors enumerated in Boreali "are not designed to second-guess agency regulations that properly falls within the agency's purview." In the event the Boreali factors indicate that the agency has been empowered to regulate the matter in question, the court said that the separation of powers analysis "goes no farther in reviewing the agency's methods."***

* The challenged rules: The City's Board of Health's amendments to the New York City Health Code mandating that children between the ages of 6 months and 59 months who attend city-regulated child care or school-based programs receive annual influenza vaccinations.

** Boreali v Axelrod, 71 NY2d 1.

*** The Court of Appeals also rejected Petitioner's alternative theory, that the City's flu vaccine rules were invalid because they conflicted with the State's Public Health Law and thus violated the Premption Doctrine which expresses "a fundamental limitation on home rule powers" and "embodies the untrammeled primacy of the [l]egislature to act with respect to matters of State concern."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04778.htm