Sovereign immunity
Alston v State of New York, Ct. of Appeals, 97 N.Y.2d 159
The doctrine of sovereign immunity generally shields a state from suit absent its consent. In Alden v Maine, 527 US 706, the Supreme Court of the United States found that State sovereign immunity is "implicit in the constitutional design." States have claimed sovereign immunity with respect to their being sued in federal court for alleged violation of various acts of Congress including the Fair Labor Standards Act. New York's claim of sovereign immunity was a critical element in resolving the Alston case.
In 1991, Benjamin Alston and 102 other State parole officers sued the State, claiming that it had failed to pay them overtime in violation of the Fair Labor Standards Act. In 1997, the United States District Court, Northern District of New York, dismissed the action based on the US Supreme Court's ruling in Seminole Tribe of Florida v Florida, 517 US 44. In Seminole the high court said that Article I of the Constitution did not give Congress the power to defeat a states' Eleventh Amendment sovereign immunity from suits commenced or prosecuted in Federal courts.
Alston appealed to the Second Circuit United States Court of Appeals, but the parties agreed to a voluntary dismissal of the action in view of the fact that the Second Circuit had ruled against other claimants in a similar case.
In 1998, Alston filed the same lawsuit in the New York's State Court of Claims. The Court of Claims dismissed the complaint holding that it lacked subject matter jurisdiction because Alston's petition was untimely.
The Appellate Division affirmed the Court of Claims' ruling. It said that "when New York waived its immunity subject to a six-month Statute of Limitations for FLSA claims brought against it as provided by the Court of Claims Act Section 10 ..., such limitation could not be overridden by the Article I powers delegated to Congress, whereby a two or three-year Statute of Limitations was created for FLSA claims." In other words, Alston should have filed his petition with the Court of Claims within six months of the "accrual of his cause of action." The Court of Appeals sustained the Appellate Division's determination.
In the words of the Court of Appeals:
"The issue before us is whether, under the terms of the waiver of sovereign immunity found in Court of Claims Act Section 8, the State retained its immunity as to these claims because claimants failed to comply with the time limitations set forth in Court of Claims Act Section 10(4), upon which the [State's] waiver was conditioned."
The court's conclusion: the State retained its immunity. Why? Because, explained the court, although Section 8 of the Court of Claims Act provides that "the state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article."
Accordingly, the State's waiver of sovereign immunity was not absolute, but was conditioned upon a claimant's compliance with the limitations on the waiver, including the relevant filing deadlines.
The Court of Appeals ruled that "because claimants failed to file their claims in the Court of Claims within six months after their accrual ... and did not timely seek relief from the court under Court of Claims Act 10(6), the State was entitled to dismissal of this claim on sovereign immunity grounds.
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED IN COMPOSING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS.
Jun 25, 2010
Terminating an employee during a disciplinary probation period
Terminating an employee during a disciplinary probation period
Fortner v NYC Dept. of Corrections, 280 A.D.2d 381
In many cases disciplinary charges are "settled" by the employee agreeing to serve a "disciplinary probationary period." The majority of such settlements set out the terms and conditions of the probation and typically provide for the termination of the individual without any further hearing if he or she violates the terms of the settlement.
Steven T. Fortner was serving a disciplinary probation period following the settlement of disciplinary charges that had been filed against him by the New York City Department of Corrections.
The department terminated him, contending that "he violated the terms of his limited probation as set forth in his negotiated plea agreement."
Fortner sued, alleging that he had been terminated in bad faith. The court disagreed, finding that Fortner produced no evidence to support his claim that his dismissal was motivated by bad faith.
Fortner had also asked the court to annul his termination and have the matter remitted to the Department "for reconsideration of the sanction."
The Appellate Division decided that such action was not appropriate under the circumstances since Fortner's termination did not "shock the judicial conscience."
Further, said the court, terminating Fortner for violating the terms of his disciplinary probationary period did not constitute an abuse of discretion on the part of the appointing authority.
The lesson here is that the courts will sustain the termination of an individual serving a disciplinary probation period without a hearing if the employee is discharged for violating or failing to comply with the terms of the disciplinary probation agreed upon.
Suppose the court finds that the employee's termination was inconsistent with the terms and conditions of his or her disciplinary probationary period?
As the Taylor decision indicates [Taylor v Cass, 505 NYS2d 929], in such a situation the individual will be reinstated with back salary.
The Taylor court determined that under the terms of Taylor's disciplinary probation, he could be terminated without any hearing if, in the opinion of his superior, Taylor's job performance was "adversely affected" by his "intoxication on the job."
The court said the appointing authority gave two reasons for it terminating Taylor for violating the terms of his disciplinary probationary period:
1. Taylor's "failing to give a fair day's work"; and
2. Taylor's "sleeping during scheduled working hours."
However, the court found that Taylor's termination was improper because Taylor was not terminated for the sole reason specified in the settlement: his intoxication on the job adversely affecting his performance of the job.
Sometimes the disciplinary probation established resulting from the settlement of the disciplinary action does not limit the appointing authority's discretion in terminating the employee. The Wright case demonstrates such a situation.
In Wright v City of New York, 596 NYS2d 372, 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 Wright's disciplinary probation he was treated as a "new employee" and he could be summarily terminated for any lawful reason.
Fortner v NYC Dept. of Corrections, 280 A.D.2d 381
In many cases disciplinary charges are "settled" by the employee agreeing to serve a "disciplinary probationary period." The majority of such settlements set out the terms and conditions of the probation and typically provide for the termination of the individual without any further hearing if he or she violates the terms of the settlement.
Steven T. Fortner was serving a disciplinary probation period following the settlement of disciplinary charges that had been filed against him by the New York City Department of Corrections.
The department terminated him, contending that "he violated the terms of his limited probation as set forth in his negotiated plea agreement."
Fortner sued, alleging that he had been terminated in bad faith. The court disagreed, finding that Fortner produced no evidence to support his claim that his dismissal was motivated by bad faith.
Fortner had also asked the court to annul his termination and have the matter remitted to the Department "for reconsideration of the sanction."
The Appellate Division decided that such action was not appropriate under the circumstances since Fortner's termination did not "shock the judicial conscience."
Further, said the court, terminating Fortner for violating the terms of his disciplinary probationary period did not constitute an abuse of discretion on the part of the appointing authority.
The lesson here is that the courts will sustain the termination of an individual serving a disciplinary probation period without a hearing if the employee is discharged for violating or failing to comply with the terms of the disciplinary probation agreed upon.
Suppose the court finds that the employee's termination was inconsistent with the terms and conditions of his or her disciplinary probationary period?
As the Taylor decision indicates [Taylor v Cass, 505 NYS2d 929], in such a situation the individual will be reinstated with back salary.
The Taylor court determined that under the terms of Taylor's disciplinary probation, he could be terminated without any hearing if, in the opinion of his superior, Taylor's job performance was "adversely affected" by his "intoxication on the job."
The court said the appointing authority gave two reasons for it terminating Taylor for violating the terms of his disciplinary probationary period:
1. Taylor's "failing to give a fair day's work"; and
2. Taylor's "sleeping during scheduled working hours."
However, the court found that Taylor's termination was improper because Taylor was not terminated for the sole reason specified in the settlement: his intoxication on the job adversely affecting his performance of the job.
Sometimes the disciplinary probation established resulting from the settlement of the disciplinary action does not limit the appointing authority's discretion in terminating the employee. The Wright case demonstrates such a situation.
In Wright v City of New York, 596 NYS2d 372, 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 Wright's disciplinary probation he was treated as a "new employee" and he could be summarily terminated for any lawful reason.
Jun 24, 2010
Governor Paterson accepts final report of Task Force on Public Retiree Health Insurance
Governor Paterson accepts final report of Task Force on Public Retiree Health Insurance
Source: Office of the Governor
On June 23, 2101 Governor David A. Paterson accepted the final report of the Task Force on Public Employee Retirement Health Care Benefits. Established by Executive Order No. 15.
The Task Force was tasked with reviewing issues such as the level and cost of benefits received by New York State public employees and retirees, the degree to which those benefits have been impacted by difficult fiscal times, the current legal framework governing retiree health benefits, potential avenues for addressing rising health care costs, and various proposals for reform.
The Task Force included representatives of various executive agencies, the Comptroller, the Legislature, local governments, labor and retiree groups. It was chaired by Richard Berman, who has previously served as director of the New York State Office of Health Systems Management, Director of the Division of Housing and Community Renewal, chair of the Westchester Medical Center, and President of Manhattanville College.
Governor Paterson said that the Task Force made the following recommendations:
• Encourage employer coalitions with labor participation pursuant to Article 47 of the Insurance Law.
• Permit the establishment of State administered prescription drug carve out plans for retired public employees.
• Implement a co-payment structure which encourages primary and preventative care by reducing financial barriers to managing disease.
• Provide a premium contribution to plan members who live outside of the service area of the employer's plan for other coverage of the retired employee's choosing.
• Continue to provide, where appropriate, incentives for providers and consumers to implement electronic medical records.
• No payment by retiree health plans, coupled with a prohibition of balance billing by providers, for "never events."
• Build relationships with and encourage use of health education and disease self management programs that promote healthy behaviors such as exercise, smoking cessation and other evidence based chronic disease self management programs.
• Require that insurers and plan administrators provide claims experience, consistent with statutory privacy protections, to local governments on request, thereby providing employers with greater audit authority.
• Actively pursue third party liability (e.g., coordination of benefits, subrogation).
• Encourage employers to provide information and assistance to retired public employees to enable them to fully leverage Medicare benefits such as health screenings and to make informed decisions about coverage.
• Establish a State insurance exchange including, but not limited to retired public employees with no coverage.
• Provide jurisdiction to the Insurance Department for oversight of the reserves and solvency of self-funded government plans.
• Encourage employers to allow retired employees who meet the plan's eligibility requirements to enroll in the employer's plan regardless of whether they were covered as an active employee.
• Implement more aggressive oversight of health care costs by the State and Federal governments.
• Create a standing task force which would represent in a fair and balanced manner the interests of retired public employees, their former employers, taxpayers and the public at large.
The Governor reported that the Task Force was unable to reach a consensus on the best approach to reform proposals that would limit the ability of public employers to diminish public retiree health benefits. Instead, it includes three position papers that set forth varying recommendations of particular Task Force participants.
A copy of the Final Report is available on the Internet at:
http://www.ny.gov/governor/reports/pdf/HealthCareRetiree.html
Source: Office of the Governor
On June 23, 2101 Governor David A. Paterson accepted the final report of the Task Force on Public Employee Retirement Health Care Benefits. Established by Executive Order No. 15.
The Task Force was tasked with reviewing issues such as the level and cost of benefits received by New York State public employees and retirees, the degree to which those benefits have been impacted by difficult fiscal times, the current legal framework governing retiree health benefits, potential avenues for addressing rising health care costs, and various proposals for reform.
The Task Force included representatives of various executive agencies, the Comptroller, the Legislature, local governments, labor and retiree groups. It was chaired by Richard Berman, who has previously served as director of the New York State Office of Health Systems Management, Director of the Division of Housing and Community Renewal, chair of the Westchester Medical Center, and President of Manhattanville College.
Governor Paterson said that the Task Force made the following recommendations:
• Encourage employer coalitions with labor participation pursuant to Article 47 of the Insurance Law.
• Permit the establishment of State administered prescription drug carve out plans for retired public employees.
• Implement a co-payment structure which encourages primary and preventative care by reducing financial barriers to managing disease.
• Provide a premium contribution to plan members who live outside of the service area of the employer's plan for other coverage of the retired employee's choosing.
• Continue to provide, where appropriate, incentives for providers and consumers to implement electronic medical records.
• No payment by retiree health plans, coupled with a prohibition of balance billing by providers, for "never events."
• Build relationships with and encourage use of health education and disease self management programs that promote healthy behaviors such as exercise, smoking cessation and other evidence based chronic disease self management programs.
• Require that insurers and plan administrators provide claims experience, consistent with statutory privacy protections, to local governments on request, thereby providing employers with greater audit authority.
• Actively pursue third party liability (e.g., coordination of benefits, subrogation).
• Encourage employers to provide information and assistance to retired public employees to enable them to fully leverage Medicare benefits such as health screenings and to make informed decisions about coverage.
• Establish a State insurance exchange including, but not limited to retired public employees with no coverage.
• Provide jurisdiction to the Insurance Department for oversight of the reserves and solvency of self-funded government plans.
• Encourage employers to allow retired employees who meet the plan's eligibility requirements to enroll in the employer's plan regardless of whether they were covered as an active employee.
• Implement more aggressive oversight of health care costs by the State and Federal governments.
• Create a standing task force which would represent in a fair and balanced manner the interests of retired public employees, their former employers, taxpayers and the public at large.
The Governor reported that the Task Force was unable to reach a consensus on the best approach to reform proposals that would limit the ability of public employers to diminish public retiree health benefits. Instead, it includes three position papers that set forth varying recommendations of particular Task Force participants.
A copy of the Final Report is available on the Internet at:
http://www.ny.gov/governor/reports/pdf/HealthCareRetiree.html
Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situation
Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situation
Woodward v GOER, 279 A.D.2d 725
The Governor's Office of Employee Relations [GOER] denied the out-of-title work grievance filed by a Grade 22 Senior Correction Counselor, Larry Woodward.According to the decision, Woodward, whose duties essentially involved "the social, educational and vocational rehabilitation of prisoners," was assigned to conduct Tier III disciplinary hearings involving inmates.
One of 10 civilian supervisory-level employees assigned such duties, Woodward conducted an average of 61 tier III disciplinary hearings per year between May 1, 1994 and June 1, 1999.
In September 1994 Longwood asked that either his name be removed from the list of individuals assigned to conduct Tier III hearings or that he be compensated for performing the tasks of a Hearing Officer, a grade 25 position.
When GOER denied his grievance, relying on an advisory opinion by the State Department of Civil Service's Director of Classification and Compensation indicating that "the grieved assignment [did] not constitute out-of-title work * * * [as] [t]he limited assignment of [petitioner ] to serve as a disciplinary hearing officer [was] a logical and proper extension of the duties of a Senior Correction Counselor and other civilians at this organizational level of correctional facility staffing". Accordingly, GOER denied Woodward's grievance.
Woodward's union, the Public Employees Federation, filed an Article 78 action seeking to annul GOER's denial of the out-of-title grievance and to obtain a determination that Woodward is entitled to back pay at the grade 25 level.
A State Supreme Court judge annulled GOER's determination and remitted this matter to it for a "redetermination and appropriate award of back pay." GOER appealed. The Appellate Division affirmed the lower court's determination, ruling that out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law Section 61(2).
Section 61(2) essentially provides that:
"[n]o person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder".
The court, however, pointed out that "not all additional duties constitute out-of-title work, and the mere fact that there may be some overlap between two particular positions does not mandate a finding that a petitioner is being compelled to perform out-of-title work."
The Appellate Division said that test to be used in considering complaints involving alleged out-of-title work is whether "the record as a whole provides a rational basis for the determination that the duties [the employee] performed were 'substantially similar' to those detailed in his job description and that he was not performing out-of-title work."
In this instance the court concluded that the Department of Civil Service specifications for Senior Correction Counselor, did not encompass "presiding over quasi-judicial adversarial proceedings, hearing and receiving evidence, making appropriate findings of fact and conclusions of law and imposing punishment."
In the words of the court, such duties "simply cannot be said to be reasonably related to or viewed as a logical extension of [Longwood's] duties as a Senior Correction Counselor.
Accordingly, Supreme Court appropriately concluded that respondents' determination denying Woodward's out-of-title grievance lacked a rational basis and was wholly arbitrary and capricious. Significantly, the Appellate Division noted that the Supreme Court did refer to a regulation, 7 NYCRR 253.1, which permits a facility superintendent to designate employees to conduct such disciplinary hearings.
However, said the court, "such designation is valid only to the extent that it does not violate Civil Service Law Section 61(2)." In other words, a regulation may not be relied to support a decision if it is inconsistent with the specific mandates of a statute.
Ultimately back pay was awarded to Woodward for his out-of-title work in conducting tier III hearings.
Woodward v GOER, 279 A.D.2d 725
The Governor's Office of Employee Relations [GOER] denied the out-of-title work grievance filed by a Grade 22 Senior Correction Counselor, Larry Woodward.According to the decision, Woodward, whose duties essentially involved "the social, educational and vocational rehabilitation of prisoners," was assigned to conduct Tier III disciplinary hearings involving inmates.
One of 10 civilian supervisory-level employees assigned such duties, Woodward conducted an average of 61 tier III disciplinary hearings per year between May 1, 1994 and June 1, 1999.
In September 1994 Longwood asked that either his name be removed from the list of individuals assigned to conduct Tier III hearings or that he be compensated for performing the tasks of a Hearing Officer, a grade 25 position.
When GOER denied his grievance, relying on an advisory opinion by the State Department of Civil Service's Director of Classification and Compensation indicating that "the grieved assignment [did] not constitute out-of-title work * * * [as] [t]he limited assignment of [petitioner ] to serve as a disciplinary hearing officer [was] a logical and proper extension of the duties of a Senior Correction Counselor and other civilians at this organizational level of correctional facility staffing". Accordingly, GOER denied Woodward's grievance.
Woodward's union, the Public Employees Federation, filed an Article 78 action seeking to annul GOER's denial of the out-of-title grievance and to obtain a determination that Woodward is entitled to back pay at the grade 25 level.
A State Supreme Court judge annulled GOER's determination and remitted this matter to it for a "redetermination and appropriate award of back pay." GOER appealed. The Appellate Division affirmed the lower court's determination, ruling that out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law Section 61(2).
Section 61(2) essentially provides that:
"[n]o person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder".
The court, however, pointed out that "not all additional duties constitute out-of-title work, and the mere fact that there may be some overlap between two particular positions does not mandate a finding that a petitioner is being compelled to perform out-of-title work."
The Appellate Division said that test to be used in considering complaints involving alleged out-of-title work is whether "the record as a whole provides a rational basis for the determination that the duties [the employee] performed were 'substantially similar' to those detailed in his job description and that he was not performing out-of-title work."
In this instance the court concluded that the Department of Civil Service specifications for Senior Correction Counselor, did not encompass "presiding over quasi-judicial adversarial proceedings, hearing and receiving evidence, making appropriate findings of fact and conclusions of law and imposing punishment."
In the words of the court, such duties "simply cannot be said to be reasonably related to or viewed as a logical extension of [Longwood's] duties as a Senior Correction Counselor.
Accordingly, Supreme Court appropriately concluded that respondents' determination denying Woodward's out-of-title grievance lacked a rational basis and was wholly arbitrary and capricious. Significantly, the Appellate Division noted that the Supreme Court did refer to a regulation, 7 NYCRR 253.1, which permits a facility superintendent to designate employees to conduct such disciplinary hearings.
However, said the court, "such designation is valid only to the extent that it does not violate Civil Service Law Section 61(2)." In other words, a regulation may not be relied to support a decision if it is inconsistent with the specific mandates of a statute.
Ultimately back pay was awarded to Woodward for his out-of-title work in conducting tier III hearings.
An employee placed on Section 72 leave for ordinary disability subsequently terminated for "abandonment of position"
An employee placed on Section 72 leave for ordinary disability subsequently terminated for "abandonment of position"
Fronczak v NYS Dept. of Correctional Services, CA2, LEXIS 2167
Section 72 of the Civil Service Law -- leave for ordinary disability -- permits an appointing authority to place on employee on involuntary leave without pay if he or she is found unable to perform the duties of his or her position as a result of an illness or a disability that is not an occupational injury or disease as defined in the Workers' Compensation Law.*
The Fronczak case involved the placement of a state worker on an involuntary leave pursuant to Section 72 of the Civil Service Law.
Daniel T. Fronczak sued the New York State Department of Correctional Services [DOCS], claiming that this action violated Americans with Disabilities Act, 42 USC Sections 12112-12117 and subjected him to unlawful retaliatory adverse employment actions in violation of 42 USC 1983.
According to the decision by the U.S. Circuit Court of Appeals, Fronczak was a correctional officer employed by DOCS at its Wyoming facility.
Critical of the facility's handling of hazardous waste materials, he began "exhibiting both bizarre and threatening behavior."
In 1993 DOCS asked Fronczak to undergo a psychiatric examination to determine his ability to perform the duties of his job.
Dr. Jeffrey Bernstein, employed by the New York Department of Civil Service's Employee Health Service, examined Fronczak and determined that Fronczak was:"in need of psychiatric care ... was a risk for not being able to manage the inmates, possibly even losing control, further control of his emotions and his temper, and having difficulty working with co-workers ... [t]hat he was unable from a psychiatric perspective to continue his duties as a corrections officer."
Based on this evaluation, in 1993 Fronczak was placed on an involuntary leave of absence. He unsuccessfully appealed the determination to the Civil Service Commission.
Section 72.2 provides that an employee placed on leave pursuant to Section 72.1 may, within one year after the date of commencement of such leave of absence, or thereafter at any time until his or her employment status is terminated, make application to the civil service department or municipal commission having jurisdiction over the position from which such employee is on leave, for a medical examination by a medical officer selected for that purpose by such department or commission.
In 1996, after a further evaluation, Fronczak was found fit to perform the duties of a corrections officer and, in accordance with DOCS policy, was required to undergo seven weeks of retraining prior to resuming active employment as a corrections officer.
During this training period Fronczak had "an altercation with an instructor" and ultimately "gathered his belongings, and departed" the facility.
Fronczak was sent a letter warning him that as provided under the terms of the collective bargaining agreement then in place, his absence for ten days would be considered "a constructive resignation."
When Fronczak failed to return with the ten-day period, DOCS notified him by mail that his absence had been deemed a constructive resignation and that his employment with DOCS was terminated.
After losing his administrative appeals before the State Civil Service Commission and exhausting his federal administrative remedies through the Equal Employment Opportunity Commission (EEOC), Fronczak filed a lawsuit in federal district court.
As set out in the Circuit Court's opinion:
"A liberal reading of [Fronczak's] complaint reveals the following alleged causes of action: (1) by placing Fronczak on involuntary leave in 1993 and terminating him in 1996, DOCS retaliated against Fronczak's exercise of his First Amendment rights, in violation of 42 USC Section 1983, for his complaints concerning its waste management; (2) the same 1993 involuntary leave and 1996 termination resulted from discrimination on the basis of a perceived mental disability in violation of the ADA."**
A federal magistrate judge dismissed Fronczak's petition on the grounds that he failed to establish a prima facie case that he had been discharged either as the result of discrimination on the basis of a perceived disability or in retaliation for his filing waste management complaints.
Instead, the magistrate concluded, "[t]he undisputed record reflects that ... [Fronczak] was discharged because he failed to show up for work." The Circuit Court sustained the magistrate's determination.
However, the Circuit Court went further. The court said that:
"assuming arguendo that Fronczak has presented a prima facie case of discrimination on the basis of a perceived mental disability in 1993, DOCS has come forward with a legitimate nondiscriminatory explanation for placing him on involuntary leave at that time, namely that he was not capable of performing the essential job duties of a corrections officer."
In addition, said the court, Fronczak did not present any evidence indicating that DOCS' proffered explanation was a pretext for discrimination.
The court's conclusion: After considering "all of Fronczak's claims and finding them without merit," the judgment of the district court is affirmed.
* Section 71 of the Civil Service Law provides for leaves of absences in connection with an "occupational injury or disease" within the meaning of the Workers' Compensation Law
** The US Supreme Court ruled that the states enjoy Eleventh Amendment immunity from lawsuit in federal court alleging violations of the Americans With Disabilities Act [Garrett v. University of Alabama, 193 F.3d 1214].
Fronczak v NYS Dept. of Correctional Services, CA2, LEXIS 2167
Section 72 of the Civil Service Law -- leave for ordinary disability -- permits an appointing authority to place on employee on involuntary leave without pay if he or she is found unable to perform the duties of his or her position as a result of an illness or a disability that is not an occupational injury or disease as defined in the Workers' Compensation Law.*
The Fronczak case involved the placement of a state worker on an involuntary leave pursuant to Section 72 of the Civil Service Law.
Daniel T. Fronczak sued the New York State Department of Correctional Services [DOCS], claiming that this action violated Americans with Disabilities Act, 42 USC Sections 12112-12117 and subjected him to unlawful retaliatory adverse employment actions in violation of 42 USC 1983.
According to the decision by the U.S. Circuit Court of Appeals, Fronczak was a correctional officer employed by DOCS at its Wyoming facility.
Critical of the facility's handling of hazardous waste materials, he began "exhibiting both bizarre and threatening behavior."
In 1993 DOCS asked Fronczak to undergo a psychiatric examination to determine his ability to perform the duties of his job.
Dr. Jeffrey Bernstein, employed by the New York Department of Civil Service's Employee Health Service, examined Fronczak and determined that Fronczak was:"in need of psychiatric care ... was a risk for not being able to manage the inmates, possibly even losing control, further control of his emotions and his temper, and having difficulty working with co-workers ... [t]hat he was unable from a psychiatric perspective to continue his duties as a corrections officer."
Based on this evaluation, in 1993 Fronczak was placed on an involuntary leave of absence. He unsuccessfully appealed the determination to the Civil Service Commission.
Section 72.2 provides that an employee placed on leave pursuant to Section 72.1 may, within one year after the date of commencement of such leave of absence, or thereafter at any time until his or her employment status is terminated, make application to the civil service department or municipal commission having jurisdiction over the position from which such employee is on leave, for a medical examination by a medical officer selected for that purpose by such department or commission.
In 1996, after a further evaluation, Fronczak was found fit to perform the duties of a corrections officer and, in accordance with DOCS policy, was required to undergo seven weeks of retraining prior to resuming active employment as a corrections officer.
During this training period Fronczak had "an altercation with an instructor" and ultimately "gathered his belongings, and departed" the facility.
Fronczak was sent a letter warning him that as provided under the terms of the collective bargaining agreement then in place, his absence for ten days would be considered "a constructive resignation."
When Fronczak failed to return with the ten-day period, DOCS notified him by mail that his absence had been deemed a constructive resignation and that his employment with DOCS was terminated.
After losing his administrative appeals before the State Civil Service Commission and exhausting his federal administrative remedies through the Equal Employment Opportunity Commission (EEOC), Fronczak filed a lawsuit in federal district court.
As set out in the Circuit Court's opinion:
"A liberal reading of [Fronczak's] complaint reveals the following alleged causes of action: (1) by placing Fronczak on involuntary leave in 1993 and terminating him in 1996, DOCS retaliated against Fronczak's exercise of his First Amendment rights, in violation of 42 USC Section 1983, for his complaints concerning its waste management; (2) the same 1993 involuntary leave and 1996 termination resulted from discrimination on the basis of a perceived mental disability in violation of the ADA."**
A federal magistrate judge dismissed Fronczak's petition on the grounds that he failed to establish a prima facie case that he had been discharged either as the result of discrimination on the basis of a perceived disability or in retaliation for his filing waste management complaints.
Instead, the magistrate concluded, "[t]he undisputed record reflects that ... [Fronczak] was discharged because he failed to show up for work." The Circuit Court sustained the magistrate's determination.
However, the Circuit Court went further. The court said that:
"assuming arguendo that Fronczak has presented a prima facie case of discrimination on the basis of a perceived mental disability in 1993, DOCS has come forward with a legitimate nondiscriminatory explanation for placing him on involuntary leave at that time, namely that he was not capable of performing the essential job duties of a corrections officer."
In addition, said the court, Fronczak did not present any evidence indicating that DOCS' proffered explanation was a pretext for discrimination.
The court's conclusion: After considering "all of Fronczak's claims and finding them without merit," the judgment of the district court is affirmed.
* Section 71 of the Civil Service Law provides for leaves of absences in connection with an "occupational injury or disease" within the meaning of the Workers' Compensation Law
** The US Supreme Court ruled that the states enjoy Eleventh Amendment immunity from lawsuit in federal court alleging violations of the Americans With Disabilities Act [Garrett v. University of Alabama, 193 F.3d 1214].
Employee terminated after being found guilty of off-duty misconduct
Employee terminated after being found guilty of off-duty misconduct
Losada v Safir, 278 A.D.2d 59
The Appellate Division sustained the disciplinary termination of New York City police officer Fernando Losada based on a finding that Losada, while off-duty, was in a traffic-related altercation during which he "wrongfully punched and kicked the driver of the other vehicle, causing him physical injury."
Another element: Losada was found guilty of filing a criminal complaint regarding the incident "that falsely portrayed the other driver as the aggressor, which resulted in the other driver being arrested and placed in detention."
The court said that the penalty of dismissal does not shock its sense of fairness, particularly given that this was Losada's second adjudication of violent misconduct within 16 months.
Losada v Safir, 278 A.D.2d 59
The Appellate Division sustained the disciplinary termination of New York City police officer Fernando Losada based on a finding that Losada, while off-duty, was in a traffic-related altercation during which he "wrongfully punched and kicked the driver of the other vehicle, causing him physical injury."
Another element: Losada was found guilty of filing a criminal complaint regarding the incident "that falsely portrayed the other driver as the aggressor, which resulted in the other driver being arrested and placed in detention."
The court said that the penalty of dismissal does not shock its sense of fairness, particularly given that this was Losada's second adjudication of violent misconduct within 16 months.
Employee terminated after failing to follow the employer's policy denied unemployment insurance benefits
Employee terminated after failing to follow the employer's policy denied unemployment insurance benefits
Matter of Cruz , 288 A.D.2d 813
Angel Cruz was dismissed from his position of Director of Public Safety and Security at the City University's Queens College campus. The reason for his termination: he failed to report allegations of sexual harassment made against members of his staff to the College's Sexual Harassment Panel. The College's policy required supervisors to report such incidents to the Panel.
The Unemployment Insurance Appeal Board subsequently rejected Cruz's claim for unemployment insurance benefits after finding that he was discharged for "disqualifying misconduct."
The Appellate Division affirmed the Board's ruling, holding that "[i]t is well settled that a claimant's knowing failure to comply with the employer's established policies and procedures can constitute disqualifying misconduct, especially in cases where such failure could jeopardize the employer's best interest."
According to the decision, Cruz admitted that he had twice failed to report allegations of sexual harassment that had been filed against members of his staff. His failure to do so, said the court, prevented the College from taking prompt action to address the allegations, thereby exposing it to potential liability.
Under these circumstances, the Appellate Division said that there was "no reason to disturb the decision of the Board finding that [Cruz] lost his job under disqualifying circumstances."
Matter of Cruz , 288 A.D.2d 813
Angel Cruz was dismissed from his position of Director of Public Safety and Security at the City University's Queens College campus. The reason for his termination: he failed to report allegations of sexual harassment made against members of his staff to the College's Sexual Harassment Panel. The College's policy required supervisors to report such incidents to the Panel.
The Unemployment Insurance Appeal Board subsequently rejected Cruz's claim for unemployment insurance benefits after finding that he was discharged for "disqualifying misconduct."
The Appellate Division affirmed the Board's ruling, holding that "[i]t is well settled that a claimant's knowing failure to comply with the employer's established policies and procedures can constitute disqualifying misconduct, especially in cases where such failure could jeopardize the employer's best interest."
According to the decision, Cruz admitted that he had twice failed to report allegations of sexual harassment that had been filed against members of his staff. His failure to do so, said the court, prevented the College from taking prompt action to address the allegations, thereby exposing it to potential liability.
Under these circumstances, the Appellate Division said that there was "no reason to disturb the decision of the Board finding that [Cruz] lost his job under disqualifying circumstances."
Jun 23, 2010
Former employee’s ADA retaliation claim survives the dismissal of her violation of the ADA complaint
Former employee’s ADA retaliation claim survives the dismissal of her violation of the ADA complaint
Ragusa v Malverne Union Free School Dist., USCA, 2nd Circuit, No. 08-5367-cv, June 21, 2010, [Unpublished]
Malverne Union Free School District mathematics teacher Biljana Ragusa sued the District, the school board and former school superintendent Mary Ellen Freeley, alleging that she had been the victim of unlawful discrimination because of her gender, age, and disability.
A federal district court judge granted the School Districts motion for summary judgment [Ragusa v. Malverne Union Free Sch. Dist., 582 F. Supp. 2d 326], finding that Ragusa failed to adduce sufficient evidence to permit a rational factfinder to conclude that she was disabled within the meaning of the ADA, that she had been subjected to a hostile work environment because of disability or that the district had retaliated against her because of her “engaging in ADA-protected activity.”
The Circuit Court sustained the district court’s ruling in part, stating that agreed with its finding that “Ragusa’s discrimination claim failed because of insufficient evidence that she is a ‘qualified individual’ with a ‘disability’ within the meaning of the ADA.”*
Ragusa had alleged that surgery to remove a benign brain tumor left her impaired in the “major life activities” of seeing, hearing, speaking, and walking.” The court, however, ruled that the evidence did not support a finding of “substantial limitation” and that the only medical evidence in the record consisted of a physician’s note clearing Ragusa to return to work following her surgery.
Further, said the court, Ragusa failed to raise a “jury question” as to whether the school district and its officers and employees “regarded her as disabled” because of an impairment that substantially limited a major life activity.
Although Ragusa contended that she received critical evaluations concerning her teaching performance, the Circuit Court decided that such criticisms reflected that the district considered her “ineffective” and not disabled.
As to Ragusa’s allegations concerning “retaliation,” the court ruled that although she presented a prima facie case of retaliation, the school district rebutted this claim by providing a non-retaliatory rationale” for her dismissal, thereby shifting the burden of going forward to Ragusa to show that the explanation offered by the district was pretextual.**
The Circuit Court concluded that Ragusa had sufficiently demonstrated the possibility of “pretext” with respect to her 2004-2005 teaching assignment and vacated the district court’s decision dismissing her claim of retaliation and remanded the matter to the federal district court for further consideration.
* The Circuit Court noted that Congress amended the ADA in 2008 to expand its coverage but said that it had decided the case on the version of the statute in effect “during the time period at issue, which ended with Ragusa’s termination on June 30, 2005, noting that, in general, a statute “shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication,” citing Bercerril v Pima County Assessor’s Office, 587 F3d 1162.
** Ragusa did not have to be disabled within the meaning of the ADA to pursue her retaliation claim as she demonstrated that she held a “good faith, reasonable belief that the underlying actions of the employer violated the ADA [see Sarno v Douglas Elliman-Gibbons and Ives, Inc., 183 F3d 155].
The decision has been posted on the Internet by the NYS Bar Association at:
http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9639670
Ragusa v Malverne Union Free School Dist., USCA, 2nd Circuit, No. 08-5367-cv, June 21, 2010, [Unpublished]
Malverne Union Free School District mathematics teacher Biljana Ragusa sued the District, the school board and former school superintendent Mary Ellen Freeley, alleging that she had been the victim of unlawful discrimination because of her gender, age, and disability.
A federal district court judge granted the School Districts motion for summary judgment [Ragusa v. Malverne Union Free Sch. Dist., 582 F. Supp. 2d 326], finding that Ragusa failed to adduce sufficient evidence to permit a rational factfinder to conclude that she was disabled within the meaning of the ADA, that she had been subjected to a hostile work environment because of disability or that the district had retaliated against her because of her “engaging in ADA-protected activity.”
The Circuit Court sustained the district court’s ruling in part, stating that agreed with its finding that “Ragusa’s discrimination claim failed because of insufficient evidence that she is a ‘qualified individual’ with a ‘disability’ within the meaning of the ADA.”*
Ragusa had alleged that surgery to remove a benign brain tumor left her impaired in the “major life activities” of seeing, hearing, speaking, and walking.” The court, however, ruled that the evidence did not support a finding of “substantial limitation” and that the only medical evidence in the record consisted of a physician’s note clearing Ragusa to return to work following her surgery.
Further, said the court, Ragusa failed to raise a “jury question” as to whether the school district and its officers and employees “regarded her as disabled” because of an impairment that substantially limited a major life activity.
Although Ragusa contended that she received critical evaluations concerning her teaching performance, the Circuit Court decided that such criticisms reflected that the district considered her “ineffective” and not disabled.
As to Ragusa’s allegations concerning “retaliation,” the court ruled that although she presented a prima facie case of retaliation, the school district rebutted this claim by providing a non-retaliatory rationale” for her dismissal, thereby shifting the burden of going forward to Ragusa to show that the explanation offered by the district was pretextual.**
The Circuit Court concluded that Ragusa had sufficiently demonstrated the possibility of “pretext” with respect to her 2004-2005 teaching assignment and vacated the district court’s decision dismissing her claim of retaliation and remanded the matter to the federal district court for further consideration.
* The Circuit Court noted that Congress amended the ADA in 2008 to expand its coverage but said that it had decided the case on the version of the statute in effect “during the time period at issue, which ended with Ragusa’s termination on June 30, 2005, noting that, in general, a statute “shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication,” citing Bercerril v Pima County Assessor’s Office, 587 F3d 1162.
** Ragusa did not have to be disabled within the meaning of the ADA to pursue her retaliation claim as she demonstrated that she held a “good faith, reasonable belief that the underlying actions of the employer violated the ADA [see Sarno v Douglas Elliman-Gibbons and Ives, Inc., 183 F3d 155].
The decision has been posted on the Internet by the NYS Bar Association at:
http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9639670
NLRB holds that union commited an unfair labor practice by disciplining a member for reporting another employee's safety violation
NLRB holds that union commited an unfair labor practice by disciplining a member for reporting another employee's safety violation
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Operating Engineers, 355 NLRB No. 25 (April 19, 2010), is an interesting case. The Board ruled 3-0 that a union violated Section 8(b)(1)(A) by fining a member $2,500 for reporting another employee's safety violation. As the Board stated:
The Respondent contends that by disciplining Overtonit did not restrain or coerce him in the exercise of his rights under Section 7 of the Act because Overton acted alone and not concertedly.
The Board has consistently found Section 8(b)(1)(A) violated, however, where a union disciplines an employee for reporting a work-rule infraction by another employee, if the disciplined employee is under a duty to make such reports, notwithstanding that the disciplined employee acted alone. See Teamsters Local 439 (University of the Pacific), 324 NLRB 1096 (1997); Carpenters District Council of SanDiego (Hopeman Bros.), 272 NLRB 584 (1984); Chemical Workers Local 604 (Essex International), 233 NLRB 1239 (1977), enfd. mem. 588 F.2d 838 (7th Cir. 1978).
We find these precedents controlling.
Mitchell H. Rubinstein
Randall Comments: Although NLRB determinations are neither binding on PERB nor controlling with respect to constituting a precedent for the purposes of the Taylor Law (see Section 209-a.3, Civil Service Law), this decision is instructive as its rationale may be adopted by PERB, arbitrators and the courts under similar circumstances.
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Operating Engineers, 355 NLRB No. 25 (April 19, 2010), is an interesting case. The Board ruled 3-0 that a union violated Section 8(b)(1)(A) by fining a member $2,500 for reporting another employee's safety violation. As the Board stated:
The Respondent contends that by disciplining Overtonit did not restrain or coerce him in the exercise of his rights under Section 7 of the Act because Overton acted alone and not concertedly.
The Board has consistently found Section 8(b)(1)(A) violated, however, where a union disciplines an employee for reporting a work-rule infraction by another employee, if the disciplined employee is under a duty to make such reports, notwithstanding that the disciplined employee acted alone. See Teamsters Local 439 (University of the Pacific), 324 NLRB 1096 (1997); Carpenters District Council of SanDiego (Hopeman Bros.), 272 NLRB 584 (1984); Chemical Workers Local 604 (Essex International), 233 NLRB 1239 (1977), enfd. mem. 588 F.2d 838 (7th Cir. 1978).
We find these precedents controlling.
Mitchell H. Rubinstein
Randall Comments: Although NLRB determinations are neither binding on PERB nor controlling with respect to constituting a precedent for the purposes of the Taylor Law (see Section 209-a.3, Civil Service Law), this decision is instructive as its rationale may be adopted by PERB, arbitrators and the courts under similar circumstances.
United States Supreme Court holds city’s review of employee messages on city pager was reasonable under the circumstances
United States Supreme Court holds city’s review of employee messages on city pager was reasonable under the circumstances
Source: Meyers Nave PLC. Reproduced with permission. Copyright © 2010, Meyers Nave. All rights reserved
In City of Ontario v. Quon, the U.S. Supreme Court issued a narrow ruling that the City's review of a SWAT officer's text messages sent over a City-issued pager was reasonable in the circumstances of that case, and thus did not violate the Fourth Amendment to the Constitution. But the Court avoided answering two broader questions about how courts should analyze non-investigatory, work-related searches by public employers—questions on which public entities had hoped Quon would provide guidance. The questions Quon left open are: (1) when do public employees have a “reasonable expectation of privacy” in their offices or electronic communications; and (2) if an employee has such an expectation, what is the test for whether an employer’s search was reasonable?
The City of Ontario adopted a written policy governing use of City computers, the Internet and email. The policy prohibited all but light personal use of City-owned electronic equipment, and specified that employees had no reasonable expectation of privacy or confidentiality in such use. The City then bought text pagers for its SWAT officers, and told them that the electronic communications policy applied to the pagers.
When a few SWAT officers exceeded the character limit on the City's pager plan, the lieutenant in charge of billing said he would not review their messages to separate the personal from the work-related, so long as officers who exceeded the limit paid the overage charges. Sergeant Quon interpreted this billing practice to mean that his text messages were no longer subject to the City-wide electronic communications policy. A few months later, the Police Chief ordered an audit of the text messages of officers who had consistently exceeded the character limit in the City’s pager plan, in order to determine if the limit was too low. The auditing officer redacted all messages sent during non-work hours. Sergeant Quon sued the City, contending that the review of his messages violated the Fourth Amendment.
A Fourth Amendment analysis involves two questions: (1) did the person have a reasonable expectation of privacy in the place searched; and (2) if so, was the search reasonable? In Quon, Justice Kennedy’s majority opinion approached both questions with extreme caution. The Court declined to set broad rules for when an employee’s expectations of privacy in electronic communications on employer-provided equipment will qualify as “reasonable” in the eyes of society, given the still-evolving role of electronic communications.
The Court also declined to decide what test to apply in future cases to determine if a public employee has a reasonable expectation of privacy in his or her office or electronic communications. The Court noted two possible approaches: a case-by-case evaluation to decide if an employee has a reasonable expectation of privacy under the circumstances, or a rule that the Fourth Amendment always applies to public employees’ offices or electronic communications. Quon does not choose between those approaches. Instead, the Court simply assumed for the sake of argument that Quon had a reasonable expectation of privacy in the text messages.
The Court similarly assumed that the City's review of the text messages was a ”search” subject to the Fourth Amendment, and that the principles governing the search of a public employee's office apply equally to searches in the electronic sphere. (Quon, Slip Op. at 12.)
The Court then discussed whether the search was permissible. At the outset, the Court noted a point raised by the League of California Cities and the California State Association of Counties in amicus briefs prepared by Meyers Nave. While warrantless searches are generally considered automatically unreasonable, one well-established exception to that rule is the "special needs" exception for government workplaces. (Quon, Slip Op. at 12.) That exception made a warrant unnecessary in Quon’s case, so the question was whether the search was reasonable.
The Court noted two possible approaches to whether a given search is reasonable—again, without deciding which approach to adopt for future cases. Under the first approach, a court must examine all the circumstances and ask: 1) was the search justified at its inception; and (2) were the measures adopted by the agency reasonably related to the objectives of the search and not excessively intrusive? (Quon, Slip Op. at 12.) Under the second approach, all “government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context” are always reasonable. (Id. at 9.)
Under the first approach, the Court found the search in Quon justified at its inception because the City had a legitimate interest in ensuring that the character limit on the City’s pager plan was appropriate. (Quon, Slip Op. at 13.)
The Court also found the scope of the search reasonable because the Department limited the search to two months’ worth of messages, and redacted all off-duty messages. (Ibid.) The Court added that, although it was assuming for argument’s sake that Quon had some reasonable expectation of privacy in the text messages, Quon could not reasonably have assumed that his messages could never be searched. (Ibid.) A reasonable law enforcement employee would realize that the text messages might be audited to determine whether the pager was being appropriately used, or to assess the SWAT team's performance in a particular emergency. (Id. at 14.) The Court then readily found that, for the same reasons, the search was reasonable under the second, “searches regarded as reasonable and normal for private employers” approach. Thus, it did not decide which of the two approaches courts must use in the future.
Justice Scalia filed a concurring opinion contending that the majority opinion improperly gave lower courts a “heavy-handed hint” about how to address the “reasonable expectation of privacy” issue. (Quon, Slip Op. (Scalia, J., concurring), at 2.) The Quon majority spent three pages discussing whether Quon’s expectation of privacy was reasonable in the circumstances—before ultimately saying that it was not going to decide that question, or even decide whether that question is relevant. Justice Scalia warned that lower courts will read this as a hint that, in future cases, they should follow the same case-by-case approach. (Ibid.)
Basically, Quon leaves governmental agencies with no clear standards to use in applying electronic communication policies. As Justice Scalia suggests, Quon will mean that, in each future case, public entities will very likely have to argue whether a given employee had a reasonable expectation of privacy in a particular office or electronic communication medium.
At most, governmental agencies can now be assured that: (1) a search warrant is not required for non-investigatory, work-related searches of electronic communications sent via publicly owned equipment, based on the "special needs" exception to the warrant requirement; and (2) if they take reasonable precautions to limit the intrusiveness and scope of a search to what is necessary to achieve its purpose, courts will likely find the search reasonable. However, the uncertainty and risk of litigation in this area mean that public entities should proceed with caution and consult legal counsel if possible before searching employees’ workspaces or electronic communications.
For more information on the Quon opinion or related legal issues regarding public employers and employees, contact Joseph Quinn or Nancy Thorington at 800.464.3559.
Source: Meyers Nave PLC. Reproduced with permission. Copyright © 2010, Meyers Nave. All rights reserved
In City of Ontario v. Quon, the U.S. Supreme Court issued a narrow ruling that the City's review of a SWAT officer's text messages sent over a City-issued pager was reasonable in the circumstances of that case, and thus did not violate the Fourth Amendment to the Constitution. But the Court avoided answering two broader questions about how courts should analyze non-investigatory, work-related searches by public employers—questions on which public entities had hoped Quon would provide guidance. The questions Quon left open are: (1) when do public employees have a “reasonable expectation of privacy” in their offices or electronic communications; and (2) if an employee has such an expectation, what is the test for whether an employer’s search was reasonable?
The City of Ontario adopted a written policy governing use of City computers, the Internet and email. The policy prohibited all but light personal use of City-owned electronic equipment, and specified that employees had no reasonable expectation of privacy or confidentiality in such use. The City then bought text pagers for its SWAT officers, and told them that the electronic communications policy applied to the pagers.
When a few SWAT officers exceeded the character limit on the City's pager plan, the lieutenant in charge of billing said he would not review their messages to separate the personal from the work-related, so long as officers who exceeded the limit paid the overage charges. Sergeant Quon interpreted this billing practice to mean that his text messages were no longer subject to the City-wide electronic communications policy. A few months later, the Police Chief ordered an audit of the text messages of officers who had consistently exceeded the character limit in the City’s pager plan, in order to determine if the limit was too low. The auditing officer redacted all messages sent during non-work hours. Sergeant Quon sued the City, contending that the review of his messages violated the Fourth Amendment.
A Fourth Amendment analysis involves two questions: (1) did the person have a reasonable expectation of privacy in the place searched; and (2) if so, was the search reasonable? In Quon, Justice Kennedy’s majority opinion approached both questions with extreme caution. The Court declined to set broad rules for when an employee’s expectations of privacy in electronic communications on employer-provided equipment will qualify as “reasonable” in the eyes of society, given the still-evolving role of electronic communications.
The Court also declined to decide what test to apply in future cases to determine if a public employee has a reasonable expectation of privacy in his or her office or electronic communications. The Court noted two possible approaches: a case-by-case evaluation to decide if an employee has a reasonable expectation of privacy under the circumstances, or a rule that the Fourth Amendment always applies to public employees’ offices or electronic communications. Quon does not choose between those approaches. Instead, the Court simply assumed for the sake of argument that Quon had a reasonable expectation of privacy in the text messages.
The Court similarly assumed that the City's review of the text messages was a ”search” subject to the Fourth Amendment, and that the principles governing the search of a public employee's office apply equally to searches in the electronic sphere. (Quon, Slip Op. at 12.)
The Court then discussed whether the search was permissible. At the outset, the Court noted a point raised by the League of California Cities and the California State Association of Counties in amicus briefs prepared by Meyers Nave. While warrantless searches are generally considered automatically unreasonable, one well-established exception to that rule is the "special needs" exception for government workplaces. (Quon, Slip Op. at 12.) That exception made a warrant unnecessary in Quon’s case, so the question was whether the search was reasonable.
The Court noted two possible approaches to whether a given search is reasonable—again, without deciding which approach to adopt for future cases. Under the first approach, a court must examine all the circumstances and ask: 1) was the search justified at its inception; and (2) were the measures adopted by the agency reasonably related to the objectives of the search and not excessively intrusive? (Quon, Slip Op. at 12.) Under the second approach, all “government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context” are always reasonable. (Id. at 9.)
Under the first approach, the Court found the search in Quon justified at its inception because the City had a legitimate interest in ensuring that the character limit on the City’s pager plan was appropriate. (Quon, Slip Op. at 13.)
The Court also found the scope of the search reasonable because the Department limited the search to two months’ worth of messages, and redacted all off-duty messages. (Ibid.) The Court added that, although it was assuming for argument’s sake that Quon had some reasonable expectation of privacy in the text messages, Quon could not reasonably have assumed that his messages could never be searched. (Ibid.) A reasonable law enforcement employee would realize that the text messages might be audited to determine whether the pager was being appropriately used, or to assess the SWAT team's performance in a particular emergency. (Id. at 14.) The Court then readily found that, for the same reasons, the search was reasonable under the second, “searches regarded as reasonable and normal for private employers” approach. Thus, it did not decide which of the two approaches courts must use in the future.
Justice Scalia filed a concurring opinion contending that the majority opinion improperly gave lower courts a “heavy-handed hint” about how to address the “reasonable expectation of privacy” issue. (Quon, Slip Op. (Scalia, J., concurring), at 2.) The Quon majority spent three pages discussing whether Quon’s expectation of privacy was reasonable in the circumstances—before ultimately saying that it was not going to decide that question, or even decide whether that question is relevant. Justice Scalia warned that lower courts will read this as a hint that, in future cases, they should follow the same case-by-case approach. (Ibid.)
Basically, Quon leaves governmental agencies with no clear standards to use in applying electronic communication policies. As Justice Scalia suggests, Quon will mean that, in each future case, public entities will very likely have to argue whether a given employee had a reasonable expectation of privacy in a particular office or electronic communication medium.
At most, governmental agencies can now be assured that: (1) a search warrant is not required for non-investigatory, work-related searches of electronic communications sent via publicly owned equipment, based on the "special needs" exception to the warrant requirement; and (2) if they take reasonable precautions to limit the intrusiveness and scope of a search to what is necessary to achieve its purpose, courts will likely find the search reasonable. However, the uncertainty and risk of litigation in this area mean that public entities should proceed with caution and consult legal counsel if possible before searching employees’ workspaces or electronic communications.
For more information on the Quon opinion or related legal issues regarding public employers and employees, contact Joseph Quinn or Nancy Thorington at 800.464.3559.
The American Recovery and Reinvestment Act of 2009 (ARRA), as amended
The American Recovery and Reinvestment Act of 2009 (ARRA), as amended
Source: US Department of Labor, Employee Benefits Security Administration
The Act, as amended, provides for premium reductions for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA. Eligible individuals pay only 35 percent of their COBRA premiums and the remaining 65 percent is reimbursed to the coverage provider through a tax credit.
To qualify, individuals must experience a COBRA qualifying event that is the involuntary termination of a covered employee's employment.
The involuntary termination must generally occur during the period that began September 1, 2008 and ends on May 31, 2010.
An involuntary termination of employment that occurs on or after March 2, 2010 but by May 31, 2010 and follows a qualifying event that was a reduction of hours that occurred at any time from September 1, 2008 through May 31, 2010 is also a qualifying event for purposes of ARRA.
The premium reduction applies to periods of health coverage that began on or after February 17, 2009 and lasts for up to 15 months. See Continuing Extension Act of 2010.
Source: US Department of Labor, Employee Benefits Security Administration
The Act, as amended, provides for premium reductions for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA. Eligible individuals pay only 35 percent of their COBRA premiums and the remaining 65 percent is reimbursed to the coverage provider through a tax credit.
To qualify, individuals must experience a COBRA qualifying event that is the involuntary termination of a covered employee's employment.
The involuntary termination must generally occur during the period that began September 1, 2008 and ends on May 31, 2010.
An involuntary termination of employment that occurs on or after March 2, 2010 but by May 31, 2010 and follows a qualifying event that was a reduction of hours that occurred at any time from September 1, 2008 through May 31, 2010 is also a qualifying event for purposes of ARRA.
The premium reduction applies to periods of health coverage that began on or after February 17, 2009 and lasts for up to 15 months. See Continuing Extension Act of 2010.
Jun 22, 2010
Section 3020-a disciplinary appeals
Section 3020-a disciplinary appeals
Austin v NYC Board of Education, 280 A.D.2d 365
The Austin decision by the Appellate Division, First Department, sets out the standards followed by the courts in considering appeals from Section 3020-a disciplinary determinations. Typically these standards are considered in connection with motions by the parties to confirm or vacate the hearing officer's decision.
The ruling also addresses an issue that is frequently of concern in such disciplinary proceedings: the acceptance and consideration of hearsay evidence by the hearing officer.
Wallace Austin was served with disciplinary charges pursuant to Section 3020-a of the Education Law. He was found guilty of certain of the charges and specifications. A State Supreme Court justice overturned the hearing officer's ruling on the basis that it was not supported by substantial evidence in the record. The Appellate Division, however, said that the lower court had applied an incorrect standard in reviewing Austin's petition and vacated the lower court's determination.
According to the Appellate Division's decision, the lower court had applied the standard applicable in reviewing challenges to administrative determinations brought pursuant to Article 78 of the Civil Practice Law and Rules [CPLR].
The Article 78 standard for review: Was the administrative determination supported by substantial evidence in the record.
In contrast, the standard of review of Section 3020-a disciplinary decisions is controlled by CPLR Article 75, not the standards to be met in resolving a challenge brought pursuant to CPLR Article 78.
Essentially a CPLR Article 75 proceeding concerns challenges to arbitration awards while an Article 78 proceeding tests whether an administrative determination was arbitrary or capricious.
The Appellate Division pointed out that Section 3020-a(5) specifically requires that a court's review of a Section 3020-a hearing officer's decision in accordance with the standard spelled out in CPLR 7511.
The sole grounds set out in Article 75 for overturning such a determination:
1. Proof of corruption, fraud or misconduct in procuring an award;
2. The partiality of the arbitrator;
3. The arbitrator exceeded his or her authority; or
4. The arbitrator failed to follow the procedures set out in Article 75.
In addition to these statutory standards justifying the vacating of the arbitration award, the courts have declared arbitration awards that violate a strong public policy null and void.
The Appellate Division said that since Austin failed to show any misconduct, bias, excess of power or procedural defects on the part of the hearing officer, [or any violation of a strong public policy] his petition must be dismissed.
In addition, the court observed that the rules governing Section 3020-a disciplinary hearing procedures do not require compliance with technical rules of evidence. Accordingly, a hearing officer may accept and consider hearsay evidence in such an administrative proceeding.
The Appellate Division also commented that "the hearing officer credited the testimony of the Principal and Assistant Principal and found [Austin's] testimony to be inconsistent and incredible."
There are other critical elements to be remembered in connection with appealing a Section 3020-a disciplinary determination.
For example, in addition to the limited grounds for vacating the arbitration award listed in Section 7511, Section 3020-a sets a very short statute of limitations for filing a petition to overturn or modify the award as well as setting other limitations in appealing such decisions.
Section 3020-a.5 provides that:
1. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to CPLR Section 7511.
2. The court’s review shall be limited to the grounds set forth in Article 75. Further, the hearing panel’s determination shall be deemed to be final for the purpose of such proceeding.3. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.
Keeping in mind the 10-day limitation for perfecting an appeal from a Section 3020-a decision, it should be remembered that the basic rules concerning effective service of a final determination for the purposes of filing a timely appeal are as follows:
1. If the individual is not represented by an attorney or by a union official, the individual must be served to begin the statute of limitations running.
2. If an employee is represented by an attorney, the administrative body may send a copy of the determination to the employee but it must serve the attorney to begin the running of the statute of limitations.
3. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.
Austin v NYC Board of Education, 280 A.D.2d 365
The Austin decision by the Appellate Division, First Department, sets out the standards followed by the courts in considering appeals from Section 3020-a disciplinary determinations. Typically these standards are considered in connection with motions by the parties to confirm or vacate the hearing officer's decision.
The ruling also addresses an issue that is frequently of concern in such disciplinary proceedings: the acceptance and consideration of hearsay evidence by the hearing officer.
Wallace Austin was served with disciplinary charges pursuant to Section 3020-a of the Education Law. He was found guilty of certain of the charges and specifications. A State Supreme Court justice overturned the hearing officer's ruling on the basis that it was not supported by substantial evidence in the record. The Appellate Division, however, said that the lower court had applied an incorrect standard in reviewing Austin's petition and vacated the lower court's determination.
According to the Appellate Division's decision, the lower court had applied the standard applicable in reviewing challenges to administrative determinations brought pursuant to Article 78 of the Civil Practice Law and Rules [CPLR].
The Article 78 standard for review: Was the administrative determination supported by substantial evidence in the record.
In contrast, the standard of review of Section 3020-a disciplinary decisions is controlled by CPLR Article 75, not the standards to be met in resolving a challenge brought pursuant to CPLR Article 78.
Essentially a CPLR Article 75 proceeding concerns challenges to arbitration awards while an Article 78 proceeding tests whether an administrative determination was arbitrary or capricious.
The Appellate Division pointed out that Section 3020-a(5) specifically requires that a court's review of a Section 3020-a hearing officer's decision in accordance with the standard spelled out in CPLR 7511.
The sole grounds set out in Article 75 for overturning such a determination:
1. Proof of corruption, fraud or misconduct in procuring an award;
2. The partiality of the arbitrator;
3. The arbitrator exceeded his or her authority; or
4. The arbitrator failed to follow the procedures set out in Article 75.
In addition to these statutory standards justifying the vacating of the arbitration award, the courts have declared arbitration awards that violate a strong public policy null and void.
The Appellate Division said that since Austin failed to show any misconduct, bias, excess of power or procedural defects on the part of the hearing officer, [or any violation of a strong public policy] his petition must be dismissed.
In addition, the court observed that the rules governing Section 3020-a disciplinary hearing procedures do not require compliance with technical rules of evidence. Accordingly, a hearing officer may accept and consider hearsay evidence in such an administrative proceeding.
The Appellate Division also commented that "the hearing officer credited the testimony of the Principal and Assistant Principal and found [Austin's] testimony to be inconsistent and incredible."
There are other critical elements to be remembered in connection with appealing a Section 3020-a disciplinary determination.
For example, in addition to the limited grounds for vacating the arbitration award listed in Section 7511, Section 3020-a sets a very short statute of limitations for filing a petition to overturn or modify the award as well as setting other limitations in appealing such decisions.
Section 3020-a.5 provides that:
1. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to CPLR Section 7511.
2. The court’s review shall be limited to the grounds set forth in Article 75. Further, the hearing panel’s determination shall be deemed to be final for the purpose of such proceeding.3. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.
Keeping in mind the 10-day limitation for perfecting an appeal from a Section 3020-a decision, it should be remembered that the basic rules concerning effective service of a final determination for the purposes of filing a timely appeal are as follows:
1. If the individual is not represented by an attorney or by a union official, the individual must be served to begin the statute of limitations running.
2. If an employee is represented by an attorney, the administrative body may send a copy of the determination to the employee but it must serve the attorney to begin the running of the statute of limitations.
3. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.
State law claims survive ADA claim dismissal
State law claims survive ADA claim dismissal
Giordano v City of New York, CA2, 274 F.3d 740
The Giordano case illustrates the fact that sometimes it is possible to maintain a discrimination lawsuit under state law notwithstanding the fact that the federal courts have dismissed similar claims alleging violations of federal law.
In such situations the state courts should make the determination based on state law and not consider the action taken by the federal courts with respect to the issues presented for adjudication.
In Giordano, a federal district court justice ruled that the fact that a police officer may be unable to work as a full-time patrol officer for one police department does not mean that he or she is impaired with respect to working in law enforcement for another police agency or in the private sector and thus is not disabled within the meaning of the ADA.
David Giordano sued the New York City Police Department under both federal and New York State human rights laws. He alleged that the Department terminated him in violation of the ADA and New York State's Human Rights Law when it mistakenly "regard[ed] him as disabled" because of his took the drug Coumadin, an anticoagulant, daily and terminated his employment.
Giordano also contended that in discharging him without giving him a personal physical examination and by continuing to employ another full-duty police officer, Thomas Rowe, who also takes Coumadin daily, the Department violated his constitutional rights under the Due Process and the Equal Protection Clauses of the Fourteenth Amendment.
Giordano appealed the federal district court's granting the Department's motion for summary judgment, dismissing all of his claims that the Department had violated both federal and state discrimination law provisions.
The Circuit Court sustained the lower court's dismissal of Giordano's complaint with respect to federal law but ruled that "the district court erred by dismissing on the merits [Giordano's] pendent state law claims under the New York State Executive Law and the New York City Administrative Code."
Reversing the district court's ruling in part, the Circuit Court decided that "these claims would be more appropriately adjudicated in state court" and remanded the case back to the district court with its directions that the district court dismiss the remaining claims without prejudice to their being brought in an appropriate state forum. The basis for the court's dismissal of Giordano's ADA and other federal claims:
1. Giordano failed to offer evidence from which a reasonable juror could conclude that the Department "regarded him as disabled" within the meaning of the ADA; and
2. There was nothing in the record to suggest that the alleged disparate treatment of Giordano and Officer Rowe resulted from any illicit motivation of the Department.
The Supervising Chief Surgeon of Department recommended that Giordano "not be permitted to perform any patrol duties and be considered for disability retirement" based on the views of a number of physicians, including two department vascular surgeons, because the anticoagulation needed for Giordano's prosthetic aortic valve could result in catastrophic bleeding from even minor injuries.
Why did Giordano's state law claims survive? According to the ruling, New York's state and municipal laws define "disability" in broader terms than does the ADA. In contrast to the ADA, New York State's Human Rights Law did not require that Giordano show that his disability "substantially limits a major life activity."
This means, said the court, that a person may be disabled within the meanings of New York's state and municipal laws even if his or her impairment does not substantially limit a major life activity.
As a procedural matter, the Circuit Court noted that the statute governing supplemental jurisdiction, [28 USC 1367] did not require dismissal of pendent state-law claims such as Giordano's where all of the federal claims have been dismissed. However, said the court, "if it appears that the state issues substantially predominate, whether in terms of proof, the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals." This solution was determined to be appropriate in Giordano's situation.
Why? The Circuit Court decided that "the state-law claims should be dismissed so that state courts can, if so called upon, decide for themselves whatever questions of state law this case may present" and "we do not think that those courts should be bound, or think themselves bound, by principles of collateral estoppel or otherwise, to any findings or conclusions reached by the district court in its discussion of whether, as a matter of law, Giordano was qualified to perform the essential functions of his job."
Giordano v City of New York, CA2, 274 F.3d 740
The Giordano case illustrates the fact that sometimes it is possible to maintain a discrimination lawsuit under state law notwithstanding the fact that the federal courts have dismissed similar claims alleging violations of federal law.
In such situations the state courts should make the determination based on state law and not consider the action taken by the federal courts with respect to the issues presented for adjudication.
In Giordano, a federal district court justice ruled that the fact that a police officer may be unable to work as a full-time patrol officer for one police department does not mean that he or she is impaired with respect to working in law enforcement for another police agency or in the private sector and thus is not disabled within the meaning of the ADA.
David Giordano sued the New York City Police Department under both federal and New York State human rights laws. He alleged that the Department terminated him in violation of the ADA and New York State's Human Rights Law when it mistakenly "regard[ed] him as disabled" because of his took the drug Coumadin, an anticoagulant, daily and terminated his employment.
Giordano also contended that in discharging him without giving him a personal physical examination and by continuing to employ another full-duty police officer, Thomas Rowe, who also takes Coumadin daily, the Department violated his constitutional rights under the Due Process and the Equal Protection Clauses of the Fourteenth Amendment.
Giordano appealed the federal district court's granting the Department's motion for summary judgment, dismissing all of his claims that the Department had violated both federal and state discrimination law provisions.
The Circuit Court sustained the lower court's dismissal of Giordano's complaint with respect to federal law but ruled that "the district court erred by dismissing on the merits [Giordano's] pendent state law claims under the New York State Executive Law and the New York City Administrative Code."
Reversing the district court's ruling in part, the Circuit Court decided that "these claims would be more appropriately adjudicated in state court" and remanded the case back to the district court with its directions that the district court dismiss the remaining claims without prejudice to their being brought in an appropriate state forum. The basis for the court's dismissal of Giordano's ADA and other federal claims:
1. Giordano failed to offer evidence from which a reasonable juror could conclude that the Department "regarded him as disabled" within the meaning of the ADA; and
2. There was nothing in the record to suggest that the alleged disparate treatment of Giordano and Officer Rowe resulted from any illicit motivation of the Department.
The Supervising Chief Surgeon of Department recommended that Giordano "not be permitted to perform any patrol duties and be considered for disability retirement" based on the views of a number of physicians, including two department vascular surgeons, because the anticoagulation needed for Giordano's prosthetic aortic valve could result in catastrophic bleeding from even minor injuries.
Why did Giordano's state law claims survive? According to the ruling, New York's state and municipal laws define "disability" in broader terms than does the ADA. In contrast to the ADA, New York State's Human Rights Law did not require that Giordano show that his disability "substantially limits a major life activity."
This means, said the court, that a person may be disabled within the meanings of New York's state and municipal laws even if his or her impairment does not substantially limit a major life activity.
As a procedural matter, the Circuit Court noted that the statute governing supplemental jurisdiction, [28 USC 1367] did not require dismissal of pendent state-law claims such as Giordano's where all of the federal claims have been dismissed. However, said the court, "if it appears that the state issues substantially predominate, whether in terms of proof, the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals." This solution was determined to be appropriate in Giordano's situation.
Why? The Circuit Court decided that "the state-law claims should be dismissed so that state courts can, if so called upon, decide for themselves whatever questions of state law this case may present" and "we do not think that those courts should be bound, or think themselves bound, by principles of collateral estoppel or otherwise, to any findings or conclusions reached by the district court in its discussion of whether, as a matter of law, Giordano was qualified to perform the essential functions of his job."
Probationary termination
Probationary termination
Higgins v La Paglia, 281 A.D.2d 679, appeal dismissed, 96 N.Y.2d 854
The Ulster County Sheriff Michael L. Paglia terminated correction officer Bradley Higgins at the end of his one-year probationary period. Higgins filed a grievance and initiated an Article 78 action seeking to overturn the Sheriff's decision.
Higgins claimed that he held tenure and thus was entitled to "notice and hearing" before he could be terminated. He cited a statement in the Ulster County Employees' Handbook that defined the probationary term as being a minimum of eight weeks and a maximum of 26 weeks.
The court rejected this argument, pointing out that the statement in the handbook contravenes the Ulster County Civil Service Rules and Regulations dealing with probation.
Finding that Higgins was a probationary employee at the time of his termination, the court said that he could be dismissed without a hearing unless he proffered sufficient evidence to create a question of fact as to whether his discharge was unrelated to work performance, motivated by a constitutionally impermissible purpose or made in bad faith.
Higgins v La Paglia, 281 A.D.2d 679, appeal dismissed, 96 N.Y.2d 854
The Ulster County Sheriff Michael L. Paglia terminated correction officer Bradley Higgins at the end of his one-year probationary period. Higgins filed a grievance and initiated an Article 78 action seeking to overturn the Sheriff's decision.
Higgins claimed that he held tenure and thus was entitled to "notice and hearing" before he could be terminated. He cited a statement in the Ulster County Employees' Handbook that defined the probationary term as being a minimum of eight weeks and a maximum of 26 weeks.
The court rejected this argument, pointing out that the statement in the handbook contravenes the Ulster County Civil Service Rules and Regulations dealing with probation.
Finding that Higgins was a probationary employee at the time of his termination, the court said that he could be dismissed without a hearing unless he proffered sufficient evidence to create a question of fact as to whether his discharge was unrelated to work performance, motivated by a constitutionally impermissible purpose or made in bad faith.
Appling the correct test in resolving a challenge to an administrative determination
Appling the correct test in resolving a challenge to an administrative determination
Matter of Heather Duncan v Klein, 38 A.D.3d 380
Heather Duncan held certification as a school bus escort and worked for the New York City Office of Pupil Transportation. The Office alleged that Duncan hit a student with her umbrella and recommended that her school bus escort certification be revoked.
A “disciplinary conference” was held pursuant to the Chancellor's Regulation C-100. It was determined that there was a “pulling/pushing match” over the umbrella and that such conduct was “unprofessional and unsafe.” The penalty recommended: “a suspension for the time already served with no back pay.”
Rather than suspend Duncan, the Chancellor elected to impose the penalty recommended by the Office of Pupil Transportation and revoked Duncan’s certification. Duncan sued in an effort to have her certification restored to her.
The test the Appellate Division said applied in this case was whether the Chancellor’s action “was arbitrary and capricious” in contrast to applying the “substantial evidence” test to the Chancellor’s determination.
As the court explained, the disciplinary conference was not conducted pursuant to the Constitution or any statute. Therefore, it was properly reviewed under the arbitrary and capricious standard rather than substantial evidence standard. Applying that “arbitrary and capricious” standard, the court said that the record provides “a rational basis for disbelieving Duncan’s version of the facts and finding, instead, that she actively hit the student and was not merely defending herself.”
The court concluded that the penalty of revocation her certification did not shock one’s conscience and dismissed Duncan’s appeal.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2007/2007_02469.htm
Matter of Heather Duncan v Klein, 38 A.D.3d 380
Heather Duncan held certification as a school bus escort and worked for the New York City Office of Pupil Transportation. The Office alleged that Duncan hit a student with her umbrella and recommended that her school bus escort certification be revoked.
A “disciplinary conference” was held pursuant to the Chancellor's Regulation C-100. It was determined that there was a “pulling/pushing match” over the umbrella and that such conduct was “unprofessional and unsafe.” The penalty recommended: “a suspension for the time already served with no back pay.”
Rather than suspend Duncan, the Chancellor elected to impose the penalty recommended by the Office of Pupil Transportation and revoked Duncan’s certification. Duncan sued in an effort to have her certification restored to her.
The test the Appellate Division said applied in this case was whether the Chancellor’s action “was arbitrary and capricious” in contrast to applying the “substantial evidence” test to the Chancellor’s determination.
As the court explained, the disciplinary conference was not conducted pursuant to the Constitution or any statute. Therefore, it was properly reviewed under the arbitrary and capricious standard rather than substantial evidence standard. Applying that “arbitrary and capricious” standard, the court said that the record provides “a rational basis for disbelieving Duncan’s version of the facts and finding, instead, that she actively hit the student and was not merely defending herself.”
The court concluded that the penalty of revocation her certification did not shock one’s conscience and dismissed Duncan’s appeal.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2007/2007_02469.htm
Jun 21, 2010
FMLA leave for domestic partners: the new federal employee leave regulations a stalking horse
FMLA leave for domestic partners: the new federal employee leave regulations a stalking horse
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
During the last presidential campaign, candidate Obama favored expansion of the FMLA to allow an employee to take job-protected leave to care for a same sex domestic partner suffering with a serious health condition. Pending legislation (H.R. 3047) seeks to make such a change law. Currently, the Defense of Marriage Act excludes same-sex marriages, including civil unions or domestic partnerships, from FMLA coverage (by defining a "spouse" as member of the opposite sex).
Given the President's expressed support for changes to the FMLA, and the Democrats control of Congress (at least until mid-term elections this November), it is possible that legislation to modify the FMLA, including the addition of domestic partnerships, might be seriously considered.
With regard to expansion of the FMLA to cover same-sex partnerships, what that legislation might look like may be gleaned from recent regulatory changes made by the US Office of Personnel Management (OPM) allowing some federal employees to take leave (but not FMLA leave) for a domestic partner. See 75 FR 33491-33497 (June 14, 2010). The regulations are effective July 14, 2010.
On June 17, 2009, President Obama directed OPM to clarify that existing employment benefits enjoyed by federal workers extended to same-sex domestic partners. OPM did so by altering the definition of a "family member" to include a domestic partner in a committed relationship.
The benefits extended included the federal employees ability to use sick leave, funeral leave, voluntary leave transfer, voluntary leave bank, and emergency leave transfer in relation to .
Domestic partner means an adult in a committed relationship with another adult, including both same-sex and opposite-sex relationships.
Opposite-sex domestic partnerships would cover common law marriages in States that do not recognize common law marriages. In States that already recognize common law marriages, the inclusion of opposite-sex domestic partnerships suggests coverage for committed relationships that fall short of a common law marriage.
Committed relationship means one in which the employee, and the domestic partner of the employee, are each other's sole domestic partner (and are not married to or domestic partners with anyone else); and share responsibility for a significant measure of each other's common welfare and financial obligations. This includes, but is not limited to same-ex and opposite-sex relationships granted legal recognition by a State or the District of Columbia as a marriage or analogous relationship (e.g., civil union).
OPM rejected suggestions that it issue regulations governing what documentation an agency may request to substantiate a covered domestic partnership. It noted that agency's typically do not ask for documentation to substantiate leave to prove an employee's relationship with a parent, brother, sister, or spouse. OPM implied that, absent suspicion of leave abuse, it should follow that practice where an employee claims the need for leave for a domestic partner. Where leave abuse is suspected, OPM indicated that agencies have the existing authority to request documentation to substantiate a request for leave, and that they should follow the same procedures for all employees where they suspect leave abuse.
Mr. Bosland Comments: OPM's definition of a domestic partner in a committed relationship is, in my opinion, needlessly vague and over broad. Specifically, it is unclear what it means to "share responsibility for a significant measure of each other's common welfare and financial obligations." The terms are undefined. Other than rejecting application of the definition to a roommate, OPM fails to give examples to animate the meaning of this key phrase. Certainly, the phrase applies to common law marriages, civil unions, or domestic partnerships in States that recognize such relationships. It is unclear, at least to me, why OPM would not adopt a definition that ties the relationship to the attributes of a common law marriage, domestic partnership, or civil union, as those terms have been recognized by some States for years. Absent such a tether, OPM invites a flood of litigation to flesh out the contours of a committed relationship, particularly in the area above roommate and below recognized common law marriage, civil union, or domestic partnership. The point of a regulation is to give employers and employees useful guidance so that they know what to expect and can conform their conduct to meet legal obligations. This regulation, in my opinion, falls short of meeting that standard.
The above regulatory changes do not apply to the FMLA - yet. That will require modification of the Defense of Marriage Act (DOMA). If, however, this is any example of the standard to be applied in the event the DOMA and FMLA are modified to include domestic partnerships, employers and employees should be prepared for the tsunami of litigation that will ensue over the level of commitment to the relationship. The good news is that such a change should make the attorneys very happy.
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
During the last presidential campaign, candidate Obama favored expansion of the FMLA to allow an employee to take job-protected leave to care for a same sex domestic partner suffering with a serious health condition. Pending legislation (H.R. 3047) seeks to make such a change law. Currently, the Defense of Marriage Act excludes same-sex marriages, including civil unions or domestic partnerships, from FMLA coverage (by defining a "spouse" as member of the opposite sex).
Given the President's expressed support for changes to the FMLA, and the Democrats control of Congress (at least until mid-term elections this November), it is possible that legislation to modify the FMLA, including the addition of domestic partnerships, might be seriously considered.
With regard to expansion of the FMLA to cover same-sex partnerships, what that legislation might look like may be gleaned from recent regulatory changes made by the US Office of Personnel Management (OPM) allowing some federal employees to take leave (but not FMLA leave) for a domestic partner. See 75 FR 33491-33497 (June 14, 2010). The regulations are effective July 14, 2010.
On June 17, 2009, President Obama directed OPM to clarify that existing employment benefits enjoyed by federal workers extended to same-sex domestic partners. OPM did so by altering the definition of a "family member" to include a domestic partner in a committed relationship.
The benefits extended included the federal employees ability to use sick leave, funeral leave, voluntary leave transfer, voluntary leave bank, and emergency leave transfer in relation to .
Domestic partner means an adult in a committed relationship with another adult, including both same-sex and opposite-sex relationships.
Opposite-sex domestic partnerships would cover common law marriages in States that do not recognize common law marriages. In States that already recognize common law marriages, the inclusion of opposite-sex domestic partnerships suggests coverage for committed relationships that fall short of a common law marriage.
Committed relationship means one in which the employee, and the domestic partner of the employee, are each other's sole domestic partner (and are not married to or domestic partners with anyone else); and share responsibility for a significant measure of each other's common welfare and financial obligations. This includes, but is not limited to same-ex and opposite-sex relationships granted legal recognition by a State or the District of Columbia as a marriage or analogous relationship (e.g., civil union).
OPM rejected suggestions that it issue regulations governing what documentation an agency may request to substantiate a covered domestic partnership. It noted that agency's typically do not ask for documentation to substantiate leave to prove an employee's relationship with a parent, brother, sister, or spouse. OPM implied that, absent suspicion of leave abuse, it should follow that practice where an employee claims the need for leave for a domestic partner. Where leave abuse is suspected, OPM indicated that agencies have the existing authority to request documentation to substantiate a request for leave, and that they should follow the same procedures for all employees where they suspect leave abuse.
Mr. Bosland Comments: OPM's definition of a domestic partner in a committed relationship is, in my opinion, needlessly vague and over broad. Specifically, it is unclear what it means to "share responsibility for a significant measure of each other's common welfare and financial obligations." The terms are undefined. Other than rejecting application of the definition to a roommate, OPM fails to give examples to animate the meaning of this key phrase. Certainly, the phrase applies to common law marriages, civil unions, or domestic partnerships in States that recognize such relationships. It is unclear, at least to me, why OPM would not adopt a definition that ties the relationship to the attributes of a common law marriage, domestic partnership, or civil union, as those terms have been recognized by some States for years. Absent such a tether, OPM invites a flood of litigation to flesh out the contours of a committed relationship, particularly in the area above roommate and below recognized common law marriage, civil union, or domestic partnership. The point of a regulation is to give employers and employees useful guidance so that they know what to expect and can conform their conduct to meet legal obligations. This regulation, in my opinion, falls short of meeting that standard.
The above regulatory changes do not apply to the FMLA - yet. That will require modification of the Defense of Marriage Act (DOMA). If, however, this is any example of the standard to be applied in the event the DOMA and FMLA are modified to include domestic partnerships, employers and employees should be prepared for the tsunami of litigation that will ensue over the level of commitment to the relationship. The good news is that such a change should make the attorneys very happy.
Termination for cause may result in the loss of fringe benefits in retirement
Termination for cause may result in the loss of fringe benefits in retirement
Farrell v City of Rensselaer, NYS Supreme Court, Justice James B. Canfield, [Not selected for publication in the Official Reports]
Frequently the employer will provide health insurance and similar fringe benefits to its retirees. In some cases an employee who, upon leaving his or her employment, has "vested" his or her retirement benefits may be entitled to such fringe benefits at a later date.
Farrell decision considers an important related issue: What are the rights of a former employee to fringe benefits such as health insurance that the employer provides to individuals receiving a retirement allowance if the retired employee was terminated from employment as a result of having been found guilty of disciplinary charges?
This was the situation that faced City of Rensselaer police officer Edward W. Farrell after he was terminated from his position for misconduct: the City refused to continue his health insurance benefits following his separation.*
Farrell sued, claiming that he was entitled to such health insurance benefits because he had "retired before being terminated." He argued that the City's refusal to pay for his health insurance benefits upon his retirement was "arbitrary, capricious, unreasonable and unlawful."
The City contended that Farrell had not retired from its police department but had been terminated following disciplinary action. The City pointed out that it had rejected Farrell's "retirement note" that he had submitted an hour before disciplinary charges were served on him and that it had gone forward with the disciplinary action.
This is not an unusual situation.
An individual may decided to submit his or her resignation in anticipation of, or after being served with, disciplinary charges. For example, the New York State Civil Service Commission, which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, adopted a rule applicable to employees addressing this type of situation -- 4 NYCRR 5.3(b).
This rule provides that in the event disciplinary charges have been, or are about to be, filed against an employee, the appointing authority may elect to disregard a resignation filed by the employee and may proceed with the disciplinary action. Should the employee be found guilty, his or her separation is recorded as a dismissal rather than a resignation. Many municipal civil service commissions have adopted a similar rule.
In Farrell's case the court appears to have applied a similar rationale in dealing with a "retirement-disciplinary situation," holding that retirement, or the announcement of an intention to retire, does not bar the employer from proceeding with a disciplinary action.
Although Farrell claimed that he had retired from the police department prior to being served with disciplinary charges, Justice Canfield commented that:
Notwithstanding the New York State and Local Retirement System's use of the word "retirement" to describe the cessation of employment, there simply is no basis for concluding that Farrell "retired" from the Rensselaer Police Department.
An employee may advise his or her employer that he or she intends to retire as a matter of courtesy. To effect a retirement, however, the individual must file an application for retirement benefits with his or her retirement system. The employer does not have any authority to approve or disapprove such a retirement application submitted by the individual.**
In fact, there is no requirement that an individual who is eligible to receive a retirement benefit actually apply for such a benefit should he or she resign. He or she, if eligible, may elect to "vest" and defer his or her retirement until a later date.
Here, said the court, Rensselaer had a resolution in place providing for its continuing to pay for health insurance benefits "for those who retire from service...." The resolution, however, "does not expressly extend that benefit to those who are dismissed from service."
Justice Canfield's conclusion: Rensselaer's refusal to pay for Farrell's health insurance benefits "is consistent with the terms of the resolution."
* The decision implies that Farrell applied for, and was granted, a retirement allowance following his dismissal.
** Typically, a member of a public retirement system of this State must file his or her application for retirement at least 30 days but not more than 90 days prior to his or her effective date of retirement.
Farrell v City of Rensselaer, NYS Supreme Court, Justice James B. Canfield, [Not selected for publication in the Official Reports]
Frequently the employer will provide health insurance and similar fringe benefits to its retirees. In some cases an employee who, upon leaving his or her employment, has "vested" his or her retirement benefits may be entitled to such fringe benefits at a later date.
Farrell decision considers an important related issue: What are the rights of a former employee to fringe benefits such as health insurance that the employer provides to individuals receiving a retirement allowance if the retired employee was terminated from employment as a result of having been found guilty of disciplinary charges?
This was the situation that faced City of Rensselaer police officer Edward W. Farrell after he was terminated from his position for misconduct: the City refused to continue his health insurance benefits following his separation.*
Farrell sued, claiming that he was entitled to such health insurance benefits because he had "retired before being terminated." He argued that the City's refusal to pay for his health insurance benefits upon his retirement was "arbitrary, capricious, unreasonable and unlawful."
The City contended that Farrell had not retired from its police department but had been terminated following disciplinary action. The City pointed out that it had rejected Farrell's "retirement note" that he had submitted an hour before disciplinary charges were served on him and that it had gone forward with the disciplinary action.
This is not an unusual situation.
An individual may decided to submit his or her resignation in anticipation of, or after being served with, disciplinary charges. For example, the New York State Civil Service Commission, which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, adopted a rule applicable to employees addressing this type of situation -- 4 NYCRR 5.3(b).
This rule provides that in the event disciplinary charges have been, or are about to be, filed against an employee, the appointing authority may elect to disregard a resignation filed by the employee and may proceed with the disciplinary action. Should the employee be found guilty, his or her separation is recorded as a dismissal rather than a resignation. Many municipal civil service commissions have adopted a similar rule.
In Farrell's case the court appears to have applied a similar rationale in dealing with a "retirement-disciplinary situation," holding that retirement, or the announcement of an intention to retire, does not bar the employer from proceeding with a disciplinary action.
Although Farrell claimed that he had retired from the police department prior to being served with disciplinary charges, Justice Canfield commented that:
Notwithstanding the New York State and Local Retirement System's use of the word "retirement" to describe the cessation of employment, there simply is no basis for concluding that Farrell "retired" from the Rensselaer Police Department.
An employee may advise his or her employer that he or she intends to retire as a matter of courtesy. To effect a retirement, however, the individual must file an application for retirement benefits with his or her retirement system. The employer does not have any authority to approve or disapprove such a retirement application submitted by the individual.**
In fact, there is no requirement that an individual who is eligible to receive a retirement benefit actually apply for such a benefit should he or she resign. He or she, if eligible, may elect to "vest" and defer his or her retirement until a later date.
Here, said the court, Rensselaer had a resolution in place providing for its continuing to pay for health insurance benefits "for those who retire from service...." The resolution, however, "does not expressly extend that benefit to those who are dismissed from service."
Justice Canfield's conclusion: Rensselaer's refusal to pay for Farrell's health insurance benefits "is consistent with the terms of the resolution."
* The decision implies that Farrell applied for, and was granted, a retirement allowance following his dismissal.
** Typically, a member of a public retirement system of this State must file his or her application for retirement at least 30 days but not more than 90 days prior to his or her effective date of retirement.
Disciplinary probation
Disciplinary probation
Feliciano v Safir, Supreme Court, [Not officially reported]
Garnett v Safir, 253 A.D.2d 700, Motion for leave to appeal denied, 92 N.Y.2d 817
The Feliciano Case:
Although the specific events underlying the Feliciano case are but rarely encountered, the decision demonstrates that an employee’s “disciplinary probation status” may follow the individual to a new agency upon his or her transfer if the new employer wishes to condition the approval of the transfer on the continuation in such status.
Nelson Feliciano became a New York City police officer when the New York City Transit Authority Police Department [TAPD] was merged with the New York City Police Department [NYPD] in April 1995. Feliciano was serving a “dismissal probation” as a result of his settlement of disciplinary charges that had been filed against him by TAPD when the merger took place.
NYPD required Feliciano to sign a waiver allowing it to assume jurisdiction over the disciplinary charges as a condition of his transfer to NYPD.
NYPD dismissed Feliciano effective October 30, 1997 without holding a pre-termination hearing because of his alleged misuse of sick leave.
Feliciano had called in sick on April 30, 1997. When an officer from the NYPD’s Absence Control and Investigations Unit (“ACIU”) appeared at Feliciano’s house at about 2:00 p.m. the next day, “Feliciano was inexplicably not at home.”
Feliciano called the ACIU and represented to one of the ACIU officers that he had a valid medical pass which excused his absence from his home between the hours of 4:00 p.m. and 8:00 p.m. through May 1, 1997. Upon checking, ACIU learned that Feliciano’s medical pass expired on April 23, 1997. When confronted with this information, Feliciano apologized for his “misstatement” about the validity of his medical pass. Ultimately NYPD dismissed Feliciano.
Claiming that “[w]ithout the waiver, the disciplinary matter could have been resolved in a much more favorable manner and ... [he] would not have been on probation,” Feliciano sued. He asked the court to order his reinstatement with back salary and benefits. In addition Feliciano contended that [1] Safir acted arbitrarily and capriciously by dismissing him without benefit of a pre-termination hearing; [2] the penalty imposed was excessive; and [3] the decision to terminate him was made in bad faith.
Justice Cozier dismissed Feliciano’s petition, noting that “[u]nless there is a demonstration of bad faith or a constitutionally or statutorily impermissible purpose, the Commissioner has broad discretion to terminate probationary employees at any time, without stating a reason, and without a pre-termination hearing.”
The decision notes that Feliciano failed to comply with sick-leave regulations, an infraction which was subject to summary dismissal. As Feliciano had abused the NYPD’s sick leave regulations, which go directly to his ability to perform his job duties in a satisfactory manner, Justice Cozier concluded that because Feliciano was a probationer, a pre-termination hearing was not required and ruled Feliciano’s dismissal from his position with NYPD lawful under the circumstances.
The Garrett Case:
The facts in the Garrett case are more typical of the disciplinary probation situations.
Renee Garrett, another New York City police officer, was found guilty of various disciplinary charges and was suspended without pay for 60 days. She was also placed on a “one-year disciplinary probationary dismissal” effective January 24, 1997. On July 9, 1997, the Commissioner terminated her.
According to the decision, Garrett’s disciplinary probation was imposed after she was found guilty following allegations that [1] she was absent without permission from her assigned post; [2] she failed to perform her duties as directed; and [3] she engaged in an oral altercation and was discourteous to a superior officer.
Garrett sued, challenging the underlying disciplinary action and penalty and, in addition, contending that she was unlawfully terminated as a probationer and that she was dismissed in bad faith.*
The Appellate Division, First Department, upheld Garrett’s dismissal, commenting that “her termination within the probationary period was validly premised upon misconduct predating the commencement of the probationary period.” It noted that she had been found guilty of charges filed against her and that “the penalty of probationary dismissal does not shock our sense of fairness, particularly in light of [Garrett’s] less than exemplary service record.”
The court then said that Garrett’s probationary termination was justified by an incident during the probationary period. According to the decision, Garrett was “late in relieving another officer from her post.”
Accordingly, Garrett had no right to a pre-termination hearing under the circumstances. As to Garrett’s claim that her termination was made in “bad faith,” the Appellate Division simply noted that “there is no credible evidence to support [her] allegations.”
* Garrett had challenged both the disciplinary determination of January 24, 1997 and her probationary termination of July 9, 1997. Both actions were consolidated and considered in this appeal.
The text of the opinion is at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/disciplinary-probation.html
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Feliciano v Safir, Supreme Court, [Not officially reported]
Garnett v Safir, 253 A.D.2d 700, Motion for leave to appeal denied, 92 N.Y.2d 817
The Feliciano Case:
Although the specific events underlying the Feliciano case are but rarely encountered, the decision demonstrates that an employee’s “disciplinary probation status” may follow the individual to a new agency upon his or her transfer if the new employer wishes to condition the approval of the transfer on the continuation in such status.
Nelson Feliciano became a New York City police officer when the New York City Transit Authority Police Department [TAPD] was merged with the New York City Police Department [NYPD] in April 1995. Feliciano was serving a “dismissal probation” as a result of his settlement of disciplinary charges that had been filed against him by TAPD when the merger took place.
NYPD required Feliciano to sign a waiver allowing it to assume jurisdiction over the disciplinary charges as a condition of his transfer to NYPD.
NYPD dismissed Feliciano effective October 30, 1997 without holding a pre-termination hearing because of his alleged misuse of sick leave.
Feliciano had called in sick on April 30, 1997. When an officer from the NYPD’s Absence Control and Investigations Unit (“ACIU”) appeared at Feliciano’s house at about 2:00 p.m. the next day, “Feliciano was inexplicably not at home.”
Feliciano called the ACIU and represented to one of the ACIU officers that he had a valid medical pass which excused his absence from his home between the hours of 4:00 p.m. and 8:00 p.m. through May 1, 1997. Upon checking, ACIU learned that Feliciano’s medical pass expired on April 23, 1997. When confronted with this information, Feliciano apologized for his “misstatement” about the validity of his medical pass. Ultimately NYPD dismissed Feliciano.
Claiming that “[w]ithout the waiver, the disciplinary matter could have been resolved in a much more favorable manner and ... [he] would not have been on probation,” Feliciano sued. He asked the court to order his reinstatement with back salary and benefits. In addition Feliciano contended that [1] Safir acted arbitrarily and capriciously by dismissing him without benefit of a pre-termination hearing; [2] the penalty imposed was excessive; and [3] the decision to terminate him was made in bad faith.
Justice Cozier dismissed Feliciano’s petition, noting that “[u]nless there is a demonstration of bad faith or a constitutionally or statutorily impermissible purpose, the Commissioner has broad discretion to terminate probationary employees at any time, without stating a reason, and without a pre-termination hearing.”
The decision notes that Feliciano failed to comply with sick-leave regulations, an infraction which was subject to summary dismissal. As Feliciano had abused the NYPD’s sick leave regulations, which go directly to his ability to perform his job duties in a satisfactory manner, Justice Cozier concluded that because Feliciano was a probationer, a pre-termination hearing was not required and ruled Feliciano’s dismissal from his position with NYPD lawful under the circumstances.
The Garrett Case:
The facts in the Garrett case are more typical of the disciplinary probation situations.
Renee Garrett, another New York City police officer, was found guilty of various disciplinary charges and was suspended without pay for 60 days. She was also placed on a “one-year disciplinary probationary dismissal” effective January 24, 1997. On July 9, 1997, the Commissioner terminated her.
According to the decision, Garrett’s disciplinary probation was imposed after she was found guilty following allegations that [1] she was absent without permission from her assigned post; [2] she failed to perform her duties as directed; and [3] she engaged in an oral altercation and was discourteous to a superior officer.
Garrett sued, challenging the underlying disciplinary action and penalty and, in addition, contending that she was unlawfully terminated as a probationer and that she was dismissed in bad faith.*
The Appellate Division, First Department, upheld Garrett’s dismissal, commenting that “her termination within the probationary period was validly premised upon misconduct predating the commencement of the probationary period.” It noted that she had been found guilty of charges filed against her and that “the penalty of probationary dismissal does not shock our sense of fairness, particularly in light of [Garrett’s] less than exemplary service record.”
The court then said that Garrett’s probationary termination was justified by an incident during the probationary period. According to the decision, Garrett was “late in relieving another officer from her post.”
Accordingly, Garrett had no right to a pre-termination hearing under the circumstances. As to Garrett’s claim that her termination was made in “bad faith,” the Appellate Division simply noted that “there is no credible evidence to support [her] allegations.”
* Garrett had challenged both the disciplinary determination of January 24, 1997 and her probationary termination of July 9, 1997. Both actions were consolidated and considered in this appeal.
The text of the opinion is at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/disciplinary-probation.html
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.
Review of an administrative determination by courts is limited in scope
Review of an administrative determination by courts is limited in scope
Matter of Reza v NYC Department of Parks & Recreation, 2007 NY Slip Op 30246(U), Supreme Court, New York County, Judge Charles J. Tejada [Not selected for publication in the Official Reports]
Mohammad Reza sued his employer, the NYC Department of Parks and Recreation [DPR], seeking reinstatement to his position, restoration of certain annual leave credits and other relief, including appointment to a higher-grade position.
Supreme Court Justice Tejada said the scope of a court’s review of a Department’s administrative determination is limited. In reviewing an agency’s decision, the only issue to be resolved by a court is “whether a determination was made in violation of lawful procedures, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.”
In a memorandum dated November 28, 2005, Reza’s superiors directed him to refrain from performing duties outside the scope of his job description. This memorandum, said the court, was in the nature of “a clarification of his position within DPR and, as such, subject to only limited judicial review, and will not be disturbed in the absence of a showing that [it is] wholly arbitrary or without any rational basis”.
Reza, said the court, had to demonstrate that the determination is either arbitrary, capricious or afflicted with an error of law sufficient to overcome the great deference courts will typically give to an administrative agency’s decision in order to prevail. Judge Tejada decided that he failed to meet this test.
Further, as a provisional employee of the DPR, Reza did not have any entitlement to the higher-level position of Associate Project Manager, Level III, and rather then being “fired,” was ordered to perform only the duties required of him by his job description as an Associate Engineering Technician, Level II. This was well within the Department’s authority to command said the court.
Reza also claimed “retaliation” as a result of his having written to the Commissioner complaining about his superior’s “actions against him” in violation of his First Amendment Rights.
Judge Tejada said that a public employee who seeks to prevail in his or her First Amendment claim of employment retaliation must show that: (1) his speech addressed a matter of public concern, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and that adverse employment decision, so that it can be said that the plaintiffs speech was a motivating factor in the adverse employment action.
In the opinion of the court, Reza failed to meet this burden as well and denied his petition.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30246.pdf
Matter of Reza v NYC Department of Parks & Recreation, 2007 NY Slip Op 30246(U), Supreme Court, New York County, Judge Charles J. Tejada [Not selected for publication in the Official Reports]
Mohammad Reza sued his employer, the NYC Department of Parks and Recreation [DPR], seeking reinstatement to his position, restoration of certain annual leave credits and other relief, including appointment to a higher-grade position.
Supreme Court Justice Tejada said the scope of a court’s review of a Department’s administrative determination is limited. In reviewing an agency’s decision, the only issue to be resolved by a court is “whether a determination was made in violation of lawful procedures, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.”
In a memorandum dated November 28, 2005, Reza’s superiors directed him to refrain from performing duties outside the scope of his job description. This memorandum, said the court, was in the nature of “a clarification of his position within DPR and, as such, subject to only limited judicial review, and will not be disturbed in the absence of a showing that [it is] wholly arbitrary or without any rational basis”.
Reza, said the court, had to demonstrate that the determination is either arbitrary, capricious or afflicted with an error of law sufficient to overcome the great deference courts will typically give to an administrative agency’s decision in order to prevail. Judge Tejada decided that he failed to meet this test.
Further, as a provisional employee of the DPR, Reza did not have any entitlement to the higher-level position of Associate Project Manager, Level III, and rather then being “fired,” was ordered to perform only the duties required of him by his job description as an Associate Engineering Technician, Level II. This was well within the Department’s authority to command said the court.
Reza also claimed “retaliation” as a result of his having written to the Commissioner complaining about his superior’s “actions against him” in violation of his First Amendment Rights.
Judge Tejada said that a public employee who seeks to prevail in his or her First Amendment claim of employment retaliation must show that: (1) his speech addressed a matter of public concern, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and that adverse employment decision, so that it can be said that the plaintiffs speech was a motivating factor in the adverse employment action.
In the opinion of the court, Reza failed to meet this burden as well and denied his petition.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30246.pdf
Termination of a probationer
Termination of a probationer
Miller v Village of Wappingers Falls, App. Div., 289 A.D.2d 209
In July 1998, Louis Miller, a registered Republican active in local party matters, was appointed as the zoning administrator of the Village of Wappingers Falls by the then Republican-controlled Village Board. Miller's appointment was apparently subject to his satisfactorily completing a probationary period. In April 1999, presumably while still serving as a probationer, Miller was terminated from his position by the newly elected Democratic administration. Miller sued, contending that he was improperly terminated from his employment because of his membership in the Republican Party.
The Village's motion for summary judgment was rejected by a State Supreme Court justice. In response to the Village's appeal challenging the lower court's denial of its motion, the Appellate Division, citing Negron v Jackson, 273 AD2d 241, said that probationary employee may not be fired for constitutionally impermissible reasons. Here, said the Appellate Division, Miller alleged a "constitutionally impermissible reason" for his termination -- his political affiliation.
The court rejected the Village's argument that because Miller was a probationary employee it had the right to terminate his employment for any reason or for no reason.*
The Appellate Division said that "given the nature of [Miller's] allegations, it was incumbent upon the [Village] to present admissible evidence in Supreme Court showing that [Miller's] political affiliations did not play a substantial part in the decision to terminate him."
In sustaining the lower court's dismissal of the Village's motion, the Appellate Division also noted that the Village "failed to even address these claims before the Supreme Court." This, said the court, meant that it did not carry its burden of proof and its motion was properly denied.
In its appeal the Village apparently also argued that Miller was "a policy-making employee cloaked with considerable discretion, and thus his political affiliation was a relevant consideration" insofar as his dismissal was concerned. The Appellate Division said it could not consider this argument "as [the Village] improperly seeks to interject new facts and theories for the first time on appeal."
Terminations alleged to be based on political affiliation frequently are stated in terms of a violation of the individual's rights under the federal Constitution. The general rule in such cases is that a public employee may not be removed from his or her public employment solely on the basis of his or her political affiliation unless there is proof that the individual's political affiliation was a critical element to his or her performance of the duties of the position.
Among the significant cases addressing this issue are Elrod v Burns, 427 US 347; Branti v Finkel, 445 US 507 and Rutan v Republican Party of Illinois, 497 US 62.
* Although the decision does not address Miller’s probationary obligation, "probationary employees" in fact hold permanent appointments and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.
Miller v Village of Wappingers Falls, App. Div., 289 A.D.2d 209
In July 1998, Louis Miller, a registered Republican active in local party matters, was appointed as the zoning administrator of the Village of Wappingers Falls by the then Republican-controlled Village Board. Miller's appointment was apparently subject to his satisfactorily completing a probationary period. In April 1999, presumably while still serving as a probationer, Miller was terminated from his position by the newly elected Democratic administration. Miller sued, contending that he was improperly terminated from his employment because of his membership in the Republican Party.
The Village's motion for summary judgment was rejected by a State Supreme Court justice. In response to the Village's appeal challenging the lower court's denial of its motion, the Appellate Division, citing Negron v Jackson, 273 AD2d 241, said that probationary employee may not be fired for constitutionally impermissible reasons. Here, said the Appellate Division, Miller alleged a "constitutionally impermissible reason" for his termination -- his political affiliation.
The court rejected the Village's argument that because Miller was a probationary employee it had the right to terminate his employment for any reason or for no reason.*
The Appellate Division said that "given the nature of [Miller's] allegations, it was incumbent upon the [Village] to present admissible evidence in Supreme Court showing that [Miller's] political affiliations did not play a substantial part in the decision to terminate him."
In sustaining the lower court's dismissal of the Village's motion, the Appellate Division also noted that the Village "failed to even address these claims before the Supreme Court." This, said the court, meant that it did not carry its burden of proof and its motion was properly denied.
In its appeal the Village apparently also argued that Miller was "a policy-making employee cloaked with considerable discretion, and thus his political affiliation was a relevant consideration" insofar as his dismissal was concerned. The Appellate Division said it could not consider this argument "as [the Village] improperly seeks to interject new facts and theories for the first time on appeal."
Terminations alleged to be based on political affiliation frequently are stated in terms of a violation of the individual's rights under the federal Constitution. The general rule in such cases is that a public employee may not be removed from his or her public employment solely on the basis of his or her political affiliation unless there is proof that the individual's political affiliation was a critical element to his or her performance of the duties of the position.
Among the significant cases addressing this issue are Elrod v Burns, 427 US 347; Branti v Finkel, 445 US 507 and Rutan v Republican Party of Illinois, 497 US 62.
* Although the decision does not address Miller’s probationary obligation, "probationary employees" in fact hold permanent appointments and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.
Use of a videotape as evidence in disciplinary hearing
Use of a videotape as evidence in disciplinary hearing
Paulin v City of New York, App. Div., 288 A.D.2d 153
On of the elements in the Paulin case was the use of a videotape in a disciplinary hearing.
Fred Paulin, a New York City police officer, was charged with misconduct. The Police Commissioner found Paulin guilty of having stolen merchandise from a store and imposed the penalty of dismissal.
In dismissing Paulin's appeal, the Appellate Division ruled that the Commissioner's decision was supported by substantial evidence, including a videotape of the incident.
Further, said the court, under the circumstances, imposing the penalty of dismissal "does not shock our sense of fairness."
Paulin v City of New York, App. Div., 288 A.D.2d 153
On of the elements in the Paulin case was the use of a videotape in a disciplinary hearing.
Fred Paulin, a New York City police officer, was charged with misconduct. The Police Commissioner found Paulin guilty of having stolen merchandise from a store and imposed the penalty of dismissal.
In dismissing Paulin's appeal, the Appellate Division ruled that the Commissioner's decision was supported by substantial evidence, including a videotape of the incident.
Further, said the court, under the circumstances, imposing the penalty of dismissal "does not shock our sense of fairness."
Jun 20, 2010
Defending and indemnifying employees
Defending and indemnifying employees
Zimmer v Town of Brookhaven, 247 A.D.2d 109
When a public employee is sued in connection with his or her performance of, or his or her failure to perform, official duties, usually he or she is entitled to look to his or her employer to provided him or her with representation in the proceeding. The Zimmer case points out one situation in which the employer may lawfully refuse to provide such assistance to an employee otherwise eligible for such legal assistance or indemnify him or her if he or she is held liable for damages.
Donald Zimmer was indicted and tried in federal district court for allegedly interfering with commerce by threats or violence, in violation of the Hobbs Act [18 USC 1951], while serving as member of the town council, Town of Brookhaven.*
Zimmer was acquitted and asked the Town to reimburse him for the legal expenses he incurred in defending himself in this federal action. When the Town rejected his claim, Zimmer sued, contending that the Town was under a “prior” or “pre-existing” legal obligation to reimburse him.
The Town initially had provided, and paid for, an attorney to defend Zimmer in the federal action. When the attorney withdrew, because of a “conflict of interest,” Zimmer employed his own attorney, whom he paid to defend him. Zimmer said that “the Town indicated to [him] that his legal fees and expenses would be ‘taken care of’.”
The Appellate Division pointed out a number of critical elements that must be resolved when “a public employee looks to the public purse to be defended, compensated, indemnified, or reimbursed in connection with legal proceedings brought against that employee....”
1. The “long-standing and frequently-invoked constitutional prohibition against the use of public moneys for private purposes (New York State Constitution, Article VIII, Section 1);”
2. In “appropriate cases and under fixed criteria, an employer, including a governmental employer, should stand behind an employee who is sued for acts performed while in the course of a duty for that employer....”
3. The public employer’s obligation to defend or indemnify an employee is limited to claims that fall clearly within the particular statutory authorization.
4. The existence of a pre-existing, legislative basis for the employee’s claim for defending or indemnifying him or her in litigation.
The basic statutory provisions protecting employees who are sued in connection with the performance of their official duties are Sections 17 and 18 of the Public Officers Law.
Section 17 established criteria for the defense and indemnification of State officers and employees against claims arising out of their public employment or duties while Section 18(2)(a) allows a municipality to adopt a local law, rule, regulation, resolution or bylaw providing for the defense and indemnification of its officers and employees who are sued as a result of their official acts or omissions.
Brookhaven had adopted a local law, Local Law 27, which provided for the “defense of the employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties.”
In its defense, the Town pointed out that while Local Law 27 provides authorization for the Town to defend and indemnify an officer or employee in civil cases, Zimmer was indicted on criminal charges.
In rebuttal, Zimmer contended that in the Security and Law Enforcement Employees case, (96 AD2d 976, affirmed 61 NY2d 965), the court allowed a public employer to compensate an employee for legal expenses in defense of criminal charges, even in the absence of a pre-existing legislative enactment.
The Appellate Division, said that Zimmer’s reliance on the Security Employees decision was misplaced because reimbursement for the expenses incurred in defending an employee in a criminal action in that case was based on a provision in a “pre-existing collective bargaining agreement, which expressly authorized it”.
In Zimmer’s situation, said the court, “there is no statute, ordinance, resolution, or anything approaching the formalities of a negotiated, pre-existing agreement of the kind” that would allow it to hold that the Town had to defend or indemnify Zimmer.
Further, the court ruled, even it were to credit Zimmer’s allegation that a town official or officials gave him assurances that the expenses would “be taken care of,” (1) no implied-in-fact contract was created under the circumstances present in Zimmer’s situation and (2) “[m]ore importantly ... no official had the authority to bind the Town or, by words or conduct, to enter into a contract to reimburse Zimmer.” Affirming the ruling by the Supreme Court, the Appellate Division dismissed Zimmer’s appeal.
Representation of an employee by a private attorney may become an issue in other situations as well.
In Foody v Rockland County, 253 A.D.2d 879, the Appellate Division, Second Department, considered whether John Foody, a Rockland County employee, was entitled to be represented by his own attorney when he and the county were named as defendants in a lawsuit.
Chapter 45 of the Laws of Rockland County provided for the defense and indemnification of municipal employees “who have been jointly sued with the County.” Foody wanted to substitute his county-selected attorney with another of his own choice and have the county pay his attorney’s “reasonable legal fees....”
One justification claimed for providing private representation in such cases is a potential, or actual, conflict of interest were the municipality’s attorney to represent both the municipality and the municipality’s employee.
The Appellate Division pointed out that Chapter 45 vests in the County Attorney the authority to decide whether a conflict of interest exists such that the employee is entitled to independent representation to be paid for out of County funds.”
But, said the court, even if the County Attorney determines that such a conflict exists, Section 45 authorizes the County Executive, not the employee, to select the employee’s private attorney. In other words, the employee does not have the right to designate his or her own attorney in such situations.
* The Hobbs Act (18 U.S.C. § 1951) prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce.
The text of the decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/defending-and-indemnifying-employees.html
Zimmer v Town of Brookhaven, 247 A.D.2d 109
When a public employee is sued in connection with his or her performance of, or his or her failure to perform, official duties, usually he or she is entitled to look to his or her employer to provided him or her with representation in the proceeding. The Zimmer case points out one situation in which the employer may lawfully refuse to provide such assistance to an employee otherwise eligible for such legal assistance or indemnify him or her if he or she is held liable for damages.
Donald Zimmer was indicted and tried in federal district court for allegedly interfering with commerce by threats or violence, in violation of the Hobbs Act [18 USC 1951], while serving as member of the town council, Town of Brookhaven.*
Zimmer was acquitted and asked the Town to reimburse him for the legal expenses he incurred in defending himself in this federal action. When the Town rejected his claim, Zimmer sued, contending that the Town was under a “prior” or “pre-existing” legal obligation to reimburse him.
The Town initially had provided, and paid for, an attorney to defend Zimmer in the federal action. When the attorney withdrew, because of a “conflict of interest,” Zimmer employed his own attorney, whom he paid to defend him. Zimmer said that “the Town indicated to [him] that his legal fees and expenses would be ‘taken care of’.”
The Appellate Division pointed out a number of critical elements that must be resolved when “a public employee looks to the public purse to be defended, compensated, indemnified, or reimbursed in connection with legal proceedings brought against that employee....”
1. The “long-standing and frequently-invoked constitutional prohibition against the use of public moneys for private purposes (New York State Constitution, Article VIII, Section 1);”
2. In “appropriate cases and under fixed criteria, an employer, including a governmental employer, should stand behind an employee who is sued for acts performed while in the course of a duty for that employer....”
3. The public employer’s obligation to defend or indemnify an employee is limited to claims that fall clearly within the particular statutory authorization.
4. The existence of a pre-existing, legislative basis for the employee’s claim for defending or indemnifying him or her in litigation.
The basic statutory provisions protecting employees who are sued in connection with the performance of their official duties are Sections 17 and 18 of the Public Officers Law.
Section 17 established criteria for the defense and indemnification of State officers and employees against claims arising out of their public employment or duties while Section 18(2)(a) allows a municipality to adopt a local law, rule, regulation, resolution or bylaw providing for the defense and indemnification of its officers and employees who are sued as a result of their official acts or omissions.
Brookhaven had adopted a local law, Local Law 27, which provided for the “defense of the employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties.”
In its defense, the Town pointed out that while Local Law 27 provides authorization for the Town to defend and indemnify an officer or employee in civil cases, Zimmer was indicted on criminal charges.
In rebuttal, Zimmer contended that in the Security and Law Enforcement Employees case, (96 AD2d 976, affirmed 61 NY2d 965), the court allowed a public employer to compensate an employee for legal expenses in defense of criminal charges, even in the absence of a pre-existing legislative enactment.
The Appellate Division, said that Zimmer’s reliance on the Security Employees decision was misplaced because reimbursement for the expenses incurred in defending an employee in a criminal action in that case was based on a provision in a “pre-existing collective bargaining agreement, which expressly authorized it”.
In Zimmer’s situation, said the court, “there is no statute, ordinance, resolution, or anything approaching the formalities of a negotiated, pre-existing agreement of the kind” that would allow it to hold that the Town had to defend or indemnify Zimmer.
Further, the court ruled, even it were to credit Zimmer’s allegation that a town official or officials gave him assurances that the expenses would “be taken care of,” (1) no implied-in-fact contract was created under the circumstances present in Zimmer’s situation and (2) “[m]ore importantly ... no official had the authority to bind the Town or, by words or conduct, to enter into a contract to reimburse Zimmer.” Affirming the ruling by the Supreme Court, the Appellate Division dismissed Zimmer’s appeal.
Representation of an employee by a private attorney may become an issue in other situations as well.
In Foody v Rockland County, 253 A.D.2d 879, the Appellate Division, Second Department, considered whether John Foody, a Rockland County employee, was entitled to be represented by his own attorney when he and the county were named as defendants in a lawsuit.
Chapter 45 of the Laws of Rockland County provided for the defense and indemnification of municipal employees “who have been jointly sued with the County.” Foody wanted to substitute his county-selected attorney with another of his own choice and have the county pay his attorney’s “reasonable legal fees....”
One justification claimed for providing private representation in such cases is a potential, or actual, conflict of interest were the municipality’s attorney to represent both the municipality and the municipality’s employee.
The Appellate Division pointed out that Chapter 45 vests in the County Attorney the authority to decide whether a conflict of interest exists such that the employee is entitled to independent representation to be paid for out of County funds.”
But, said the court, even if the County Attorney determines that such a conflict exists, Section 45 authorizes the County Executive, not the employee, to select the employee’s private attorney. In other words, the employee does not have the right to designate his or her own attorney in such situations.
* The Hobbs Act (18 U.S.C. § 1951) prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce.
The text of the decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/defending-and-indemnifying-employees.html
Jun 18, 2010
If a CBA sets out the rights of an individual to arbitrate an employer’s disciplinary decision, those rights may not be expanded by another article
If a CBA sets out the rights of an individual to arbitrate an employer’s disciplinary decision, those rights may not be expanded by another article
Fashion Inst. of Tech. v United Coll. Employees of Fashion Inst. of Tech., Local 3457, Am. Fedn. of Teachers, 2010 NY Slip Op 05329, 2010 NY Slip Op 05329, Appellate Division, First Department
The relevant collective bargaining agreement [CBA] between the Union and the Institute had separate and distinct Articles that were relevant in this action: one governing general "Grievances" and a second setting out a “Disciplinary Procedure."
The "Disciplinary Procedure" Article provided that "[n]o employee may be disciplined except for just cause." It further provided that a two-person disciplinary committee, consisting of one Institute representative and one Union representative would issue a recommendation as the disposition of the matter to FIT's President. Upon receiving the recommendation of the disciplinary committee the President "may take disciplinary action," which "may include, but is not limited to, reprimand . . ., suspen[sion] with or without pay, or termination."
The CAB further provided that "[i]f the President's decision is to terminate a part-time employee … the College and Union will refer the case to an outside arbitrator for final and binding determination." The Appellate Division then noted that although “the determination to terminate a part-time employee was expressly made subject to arbitration,” there was no similar provision making the President’s determination to suspend a part-time employee subject to arbitration.
When the Institute’s President suspended a “part-time employee,” Les Katz, without pay the Union filed a CBA grievance with FIT challenging the suspension and demanded the President’s decision be submitted to arbitration before the AAA. The Union alleged that the school had "[i]mproperly disciplined Les Katz in violation of the CBA." The Institute filed a petition pursuant to CPLR 7503(b) in Supreme Court seeking an order permanently staying the arbitration.
Supreme Court granted the stay and the Appellate Division sustained the lower court’s ruling that the Union’s claim was not subject to arbitration. The court explained that Katz was “cited, disciplined and suspended in accordance with the disciplinary procedures set forth” in the CBA’s Disciplinary Procedure Article, which “clearly govern in this case.” Significantly, the Disciplinary Procedure did not provide for arbitration of the President’s determination to suspend a part-time employee.
Addressing the union’s argument that the issue of whether Katz was properly suspended is subject to arbitration pursuant to the general Grievance Article, the Appellate Division said that “The reading of the contract proposed by the union, which would graft the procedures in [the ’Grievance’ provision Article] onto the disciplinary procedures in [the ‘Disciplinary Procedure’ Article] would render superfluous the provisions of [the Disciplinary Procedure Article that provided] for a limited right of arbitration for part-time employees only if they are terminated.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05329.htm
Fashion Inst. of Tech. v United Coll. Employees of Fashion Inst. of Tech., Local 3457, Am. Fedn. of Teachers, 2010 NY Slip Op 05329, 2010 NY Slip Op 05329, Appellate Division, First Department
The relevant collective bargaining agreement [CBA] between the Union and the Institute had separate and distinct Articles that were relevant in this action: one governing general "Grievances" and a second setting out a “Disciplinary Procedure."
The "Disciplinary Procedure" Article provided that "[n]o employee may be disciplined except for just cause." It further provided that a two-person disciplinary committee, consisting of one Institute representative and one Union representative would issue a recommendation as the disposition of the matter to FIT's President. Upon receiving the recommendation of the disciplinary committee the President "may take disciplinary action," which "may include, but is not limited to, reprimand . . ., suspen[sion] with or without pay, or termination."
The CAB further provided that "[i]f the President's decision is to terminate a part-time employee … the College and Union will refer the case to an outside arbitrator for final and binding determination." The Appellate Division then noted that although “the determination to terminate a part-time employee was expressly made subject to arbitration,” there was no similar provision making the President’s determination to suspend a part-time employee subject to arbitration.
When the Institute’s President suspended a “part-time employee,” Les Katz, without pay the Union filed a CBA grievance with FIT challenging the suspension and demanded the President’s decision be submitted to arbitration before the AAA. The Union alleged that the school had "[i]mproperly disciplined Les Katz in violation of the CBA." The Institute filed a petition pursuant to CPLR 7503(b) in Supreme Court seeking an order permanently staying the arbitration.
Supreme Court granted the stay and the Appellate Division sustained the lower court’s ruling that the Union’s claim was not subject to arbitration. The court explained that Katz was “cited, disciplined and suspended in accordance with the disciplinary procedures set forth” in the CBA’s Disciplinary Procedure Article, which “clearly govern in this case.” Significantly, the Disciplinary Procedure did not provide for arbitration of the President’s determination to suspend a part-time employee.
Addressing the union’s argument that the issue of whether Katz was properly suspended is subject to arbitration pursuant to the general Grievance Article, the Appellate Division said that “The reading of the contract proposed by the union, which would graft the procedures in [the ’Grievance’ provision Article] onto the disciplinary procedures in [the ‘Disciplinary Procedure’ Article] would render superfluous the provisions of [the Disciplinary Procedure Article that provided] for a limited right of arbitration for part-time employees only if they are terminated.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05329.htm
Concerning the so-called “Blue Wall of Silence”
Concerning the so-called “Blue Wall of Silence”
Diesel v Town of Lewisboro, CA2, 232 F.3d 92
While some might allege that there is a "blue wall of silence"* encouraged by certain individuals involved in law enforcement, rarely does one find a court decision that specifically addresses the concept.
Not so in the Diesel case. Here a New York State Trooper complained that his civil rights were violated when fellow Troopers failed to accord him a "blue wall of silence."
New York State Trooper Dennis Diesel, sued other members of the New York Division of State Police. Diesel claimed that he had cooperated with an internal affairs investigation involving alleged misconduct by other State Police officers. He alleged that in a subsequent, unrelated incident, -- he was found early one morning passed out or asleep behind the wheel of an official car -- he suffered retaliation as a result of his having cooperated in the internal affairs investigation by being subjected to:
1. An "excessive, prolonged and overzealous investigation" of the incident;
2. The failure of the investigating officers to extend to him a form of "professional courtesy" he terms the "blue wall of silence"; and
3. The officers involved in investigating the incident violating his rights under the First, Fourth and Fourteenth Amendments to the Constitution and New York state law.
Addressing the "blue wall of silence" issue, the Circuit Court said:
1. A selective enforcement claim under the Equal Protection Clause of the Fourteenth Amendment cannot rest on the allegation that police officers refused to close their eyes to another officer's serious misconduct in accordance with the tradition of the "blue wall of silence";
2. The investigation into Diesel's misconduct was reasonable as a matter of law both in its initiation and scope; and
3. Diesel failed to prove that he was subjected to retaliatory harassment where the alleged retaliation was a reasonable response to Diesel's own culpable conduct.
Accordingly, the court held that Diesel was not, as a matter of law, entitled to any damages and reverse that portion of the district court's judgment in favor of Diesel.
* The phrase "Blue Wall of Silence" has been popularly used to characterized the alleged unity exhibited by law enforcement personnel to limit or minimize their co-operation in an investigation where the target of the investigation is a police or other law enforcement official.
Diesel v Town of Lewisboro, CA2, 232 F.3d 92
While some might allege that there is a "blue wall of silence"* encouraged by certain individuals involved in law enforcement, rarely does one find a court decision that specifically addresses the concept.
Not so in the Diesel case. Here a New York State Trooper complained that his civil rights were violated when fellow Troopers failed to accord him a "blue wall of silence."
New York State Trooper Dennis Diesel, sued other members of the New York Division of State Police. Diesel claimed that he had cooperated with an internal affairs investigation involving alleged misconduct by other State Police officers. He alleged that in a subsequent, unrelated incident, -- he was found early one morning passed out or asleep behind the wheel of an official car -- he suffered retaliation as a result of his having cooperated in the internal affairs investigation by being subjected to:
1. An "excessive, prolonged and overzealous investigation" of the incident;
2. The failure of the investigating officers to extend to him a form of "professional courtesy" he terms the "blue wall of silence"; and
3. The officers involved in investigating the incident violating his rights under the First, Fourth and Fourteenth Amendments to the Constitution and New York state law.
Addressing the "blue wall of silence" issue, the Circuit Court said:
1. A selective enforcement claim under the Equal Protection Clause of the Fourteenth Amendment cannot rest on the allegation that police officers refused to close their eyes to another officer's serious misconduct in accordance with the tradition of the "blue wall of silence";
2. The investigation into Diesel's misconduct was reasonable as a matter of law both in its initiation and scope; and
3. Diesel failed to prove that he was subjected to retaliatory harassment where the alleged retaliation was a reasonable response to Diesel's own culpable conduct.
Accordingly, the court held that Diesel was not, as a matter of law, entitled to any damages and reverse that portion of the district court's judgment in favor of Diesel.
* The phrase "Blue Wall of Silence" has been popularly used to characterized the alleged unity exhibited by law enforcement personnel to limit or minimize their co-operation in an investigation where the target of the investigation is a police or other law enforcement official.
Determining when to apply the substantial evidence standard of review and when to apply the arbitrary and capricious standard in a disciplinary action
Determining when to apply the substantial evidence standard of review and when to apply the arbitrary and capricious standard in a disciplinary action
Pierino v Brown, 281 A.D.2d 960
The significant issue in the Pierino case concerns the proper standard to be applied in making the determination in an administrative disciplinary proceeding.
John Pierino filed an Article 78 action challenging a disciplinary determination based on a hearing officer's finding that Pierino was guilty of violating Section 35-6 of the Buffalo City Code.
The disciplinary charges filed against Pierino were resolved in accordance with the provisions set out in Article 22 -- the contract disciplinary procedure -- of the relevant collective bargaining agreement. Article 22 required the appointment of a hearing officer, who was to hear the charges and make a determination.
Pierino challenged the disciplinary determination by bring an Article 78 action alleging the decision by the hearing officer was not based on substantial evidence. As is typical in such cases, the State Supreme Court transferred the action to the Appellate Division.
The Appellate Division, however, rejected the transfer of Pierino's Article 78 petition to it for review.
What was the basis for the court's action?
The Appellate Division ruled that the issue of "substantial evidence" that formed the basis of Pierino's appeal is raised only if an administrative hearing is "required by law." In the words of the Appellate Division, citing Marin v Bensonsi, 131 AD2 100:
“Since the hearing was mandated by the collective bargaining agreement and not by Civil Service Law Section 75, the substantial evidence standard of review does not apply and the arbitrary and capricious standard is appropriate."
Consequently, said the Appellate Division, "the proceeding was erroneously transferred to this Court.”
Pierino v Brown, 281 A.D.2d 960
The significant issue in the Pierino case concerns the proper standard to be applied in making the determination in an administrative disciplinary proceeding.
John Pierino filed an Article 78 action challenging a disciplinary determination based on a hearing officer's finding that Pierino was guilty of violating Section 35-6 of the Buffalo City Code.
The disciplinary charges filed against Pierino were resolved in accordance with the provisions set out in Article 22 -- the contract disciplinary procedure -- of the relevant collective bargaining agreement. Article 22 required the appointment of a hearing officer, who was to hear the charges and make a determination.
Pierino challenged the disciplinary determination by bring an Article 78 action alleging the decision by the hearing officer was not based on substantial evidence. As is typical in such cases, the State Supreme Court transferred the action to the Appellate Division.
The Appellate Division, however, rejected the transfer of Pierino's Article 78 petition to it for review.
What was the basis for the court's action?
The Appellate Division ruled that the issue of "substantial evidence" that formed the basis of Pierino's appeal is raised only if an administrative hearing is "required by law." In the words of the Appellate Division, citing Marin v Bensonsi, 131 AD2 100:
“Since the hearing was mandated by the collective bargaining agreement and not by Civil Service Law Section 75, the substantial evidence standard of review does not apply and the arbitrary and capricious standard is appropriate."
Consequently, said the Appellate Division, "the proceeding was erroneously transferred to this Court.”
Absence during a probationary period
Absence during a probationary period
Matter of Garnes v Kelly, 2007 NY Slip Op 30262(U), Judge: Herman Cahn, [Not selected for publication in the Official Reports], Affirmed 51 A.D.3d 538
Garnes was appointed as a New York City police officer on July 1, 2003. His appointment was subject to a twenty-four month probationary period. Under normal circumstances Garnes would have completed his twenty-four month probationary period on June 30, 2005.
During his probationary period, however, Garnes was suspended for 30 days as a result of an off-duty incident and had other absences during this period. In addition, Judge Cahn noted that at the end of Garnes’ 30-day period of suspension, the NYPD placed him on modified duty.
Ultimately NYPD’s psychologist, Marisa Barra, M.A., determined that Garnes was “psychologically unsuitable to be a Police Officer and recommended that he be separated from the Department.’’ NYPD dismissed Garnes on May 4, 2006.
Garnes filed a petition pursuant to CPLR Article 78 seeking a court order annulling his termination from the NYPD, an order directing his reinstatement to his former position and an order compelling the Department to provide him with a name-clearing hearing.
The question to be resolved by the court: was Garnes’ probationary period extended as a result of his being suspended for suspended for 30 days on July 9, 2005 as a result of an off-duty incident and his other absences?
Rule 5.2.8(b) of the Personnel Rules and Regulations of the City of New York (“Personnel Rules”) provide that an employee’s probationary period is automatically extended by the number of days the employee does not perform the duties of the position. Under these Rules, a probationer is deemed not to be performing his duties when he is on annual leave, sick leave, assigned to limited duty or is suspended.
The NYPD contended that Garnes was not entitled to a pre-termination hearing because he was still on probation when he was terminated.
Judge Cahn ruled that: Because the Personnel Rules specify that an employee’s probationary period is extended by any amount of time that he is not performing his duties and are clear that a probationary employee may be terminated at any point during the extended period, at the time of his suspension, Garnes was still a probationary employee.
“Additionally,” said the court, “the extended probationary period continued beyond Garnes’ suspension, when the NYPD placed him on modified and restricted duty, pending the investigation of the off-duty incident.” Although modified duty is not listed in the Personnel Rules, Judge Chan said that the Court of Appeals has determined that it acts to extend the probationary period and the probationer does not have to be given notice of such an extension, citing Garcia v Bratton, 90 NY2d 991.*
As to Garnes’ demand for a name-clearing hearing, such a hearing is required when an employee can demonstrate that there is likelihood that false, “stigmatizing” material found in his personnel file will be disseminated by the employer, foreclosing future employment opportunities. Further, the sole purpose of such a hearing is to afford the employee an opportunity to prove that the material is false and should be expunged from his or her record -- it is not grounds for reinstatement should the individual prevail.
Judge Cahn ruled that Garnes was not entitled to a name-clearing hearing because even assuming all the facts in his Petition are true, he did not meet the standard for a name-clearing hearing set by the Court of Appeals in Swinton v Safir, 93 NY2d 758. Swinton requires that the material objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” The Appellate Division agreed.
Further, said the court, dismissing Garnes’ petition in its entirety, it must be noted that Garnes has not put forth any allegations or evidence that there is a likelihood any of this alleged stigmatizing material would be disseminated. In contrast, in Swinton, Swinton contended that the police department would disclose his personnel record to agencies with which he was seeking employment. Garnes, however, did not advance allegations that the NYPD will give his personnel file to potential employers.
* In the event an employee injured on the job is given a “light-duty assignment,” the courts have ruled that the appointing authority was not required to count the employee's “light-duty service” for probationary purposes [see Boyle v Koch, 114 AD2 78, leave to appeal denied, 68 NY2d 601]. In such situations, the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of his or her satisfactory performance of “light-duty.”
Judge Cahn's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30262.pdf
Matter of Garnes v Kelly, 2007 NY Slip Op 30262(U), Judge: Herman Cahn, [Not selected for publication in the Official Reports], Affirmed 51 A.D.3d 538
Garnes was appointed as a New York City police officer on July 1, 2003. His appointment was subject to a twenty-four month probationary period. Under normal circumstances Garnes would have completed his twenty-four month probationary period on June 30, 2005.
During his probationary period, however, Garnes was suspended for 30 days as a result of an off-duty incident and had other absences during this period. In addition, Judge Cahn noted that at the end of Garnes’ 30-day period of suspension, the NYPD placed him on modified duty.
Ultimately NYPD’s psychologist, Marisa Barra, M.A., determined that Garnes was “psychologically unsuitable to be a Police Officer and recommended that he be separated from the Department.’’ NYPD dismissed Garnes on May 4, 2006.
Garnes filed a petition pursuant to CPLR Article 78 seeking a court order annulling his termination from the NYPD, an order directing his reinstatement to his former position and an order compelling the Department to provide him with a name-clearing hearing.
The question to be resolved by the court: was Garnes’ probationary period extended as a result of his being suspended for suspended for 30 days on July 9, 2005 as a result of an off-duty incident and his other absences?
Rule 5.2.8(b) of the Personnel Rules and Regulations of the City of New York (“Personnel Rules”) provide that an employee’s probationary period is automatically extended by the number of days the employee does not perform the duties of the position. Under these Rules, a probationer is deemed not to be performing his duties when he is on annual leave, sick leave, assigned to limited duty or is suspended.
The NYPD contended that Garnes was not entitled to a pre-termination hearing because he was still on probation when he was terminated.
Judge Cahn ruled that: Because the Personnel Rules specify that an employee’s probationary period is extended by any amount of time that he is not performing his duties and are clear that a probationary employee may be terminated at any point during the extended period, at the time of his suspension, Garnes was still a probationary employee.
“Additionally,” said the court, “the extended probationary period continued beyond Garnes’ suspension, when the NYPD placed him on modified and restricted duty, pending the investigation of the off-duty incident.” Although modified duty is not listed in the Personnel Rules, Judge Chan said that the Court of Appeals has determined that it acts to extend the probationary period and the probationer does not have to be given notice of such an extension, citing Garcia v Bratton, 90 NY2d 991.*
As to Garnes’ demand for a name-clearing hearing, such a hearing is required when an employee can demonstrate that there is likelihood that false, “stigmatizing” material found in his personnel file will be disseminated by the employer, foreclosing future employment opportunities. Further, the sole purpose of such a hearing is to afford the employee an opportunity to prove that the material is false and should be expunged from his or her record -- it is not grounds for reinstatement should the individual prevail.
Judge Cahn ruled that Garnes was not entitled to a name-clearing hearing because even assuming all the facts in his Petition are true, he did not meet the standard for a name-clearing hearing set by the Court of Appeals in Swinton v Safir, 93 NY2d 758. Swinton requires that the material objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” The Appellate Division agreed.
Further, said the court, dismissing Garnes’ petition in its entirety, it must be noted that Garnes has not put forth any allegations or evidence that there is a likelihood any of this alleged stigmatizing material would be disseminated. In contrast, in Swinton, Swinton contended that the police department would disclose his personnel record to agencies with which he was seeking employment. Garnes, however, did not advance allegations that the NYPD will give his personnel file to potential employers.
* In the event an employee injured on the job is given a “light-duty assignment,” the courts have ruled that the appointing authority was not required to count the employee's “light-duty service” for probationary purposes [see Boyle v Koch, 114 AD2 78, leave to appeal denied, 68 NY2d 601]. In such situations, the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of his or her satisfactory performance of “light-duty.”
Judge Cahn's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30262.pdf
Reporting threats of violence by a disgruntled employee to the police
Reporting threats of violence by a disgruntled employee to the police
Aviles v Cornell Forge Co., CA7, 241 F.3d 589
Violence at the work site is a growing concern to both employers and employees.
The Aviles case involves an employer's fear of such violence after it learned that a disgruntled employee, Alfredo Aviles, had threatened a supervisor and was seen standing outside the building. The police were called and arrested Aviles. Aviles then sued the employer, Cornell Forge Co., for alleged unlawful discrimination based on his national origin and claimed that the Cornell had called the police in retaliation for his filing a hostile work environment claim.
These were the essential elements alleged in the Aviles case.
Aviles contended that he was the victim of unlawful discrimination because "calling the police to report that a disgruntled employee is waiting outside the workplace and may be armed is an adverse action as a matter of law."
The U.S. Circuit Court of Appeals disagreed with Aviles' theory, ruling that a truthful, nondiscriminatory report to the police should not subject an employer to Title VII liability.
According to the decision, such theory is "ill-advised." If, said the court, an employer had to face potential Title VII liability for truthfully reporting to the police that a disgruntled employee had threatened a supervisor and could be armed, it probably would discourage employers from taking the most prudent action to protect themselves and others in the workplace.
In contrast, the court said that a false report to the police could be construed as a retaliatory action meant to dissuade Aviles from pursuing his EEOC charge against the company.
The court affirmed the district court's granting a directed verdict in favor of Cornell Forge.
Aviles v Cornell Forge Co., CA7, 241 F.3d 589
Violence at the work site is a growing concern to both employers and employees.
The Aviles case involves an employer's fear of such violence after it learned that a disgruntled employee, Alfredo Aviles, had threatened a supervisor and was seen standing outside the building. The police were called and arrested Aviles. Aviles then sued the employer, Cornell Forge Co., for alleged unlawful discrimination based on his national origin and claimed that the Cornell had called the police in retaliation for his filing a hostile work environment claim.
These were the essential elements alleged in the Aviles case.
Aviles contended that he was the victim of unlawful discrimination because "calling the police to report that a disgruntled employee is waiting outside the workplace and may be armed is an adverse action as a matter of law."
The U.S. Circuit Court of Appeals disagreed with Aviles' theory, ruling that a truthful, nondiscriminatory report to the police should not subject an employer to Title VII liability.
According to the decision, such theory is "ill-advised." If, said the court, an employer had to face potential Title VII liability for truthfully reporting to the police that a disgruntled employee had threatened a supervisor and could be armed, it probably would discourage employers from taking the most prudent action to protect themselves and others in the workplace.
In contrast, the court said that a false report to the police could be construed as a retaliatory action meant to dissuade Aviles from pursuing his EEOC charge against the company.
The court affirmed the district court's granting a directed verdict in favor of Cornell Forge.
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Editor in Chief Harvey Randall served as Director of Personnel, State University of New York Central Administration; Director of Research, Governor's Office of Employee Relations; Principal Attorney, Counsel's Office, New York State Department of Civil Service; and Colonel, JAG, Command Headquarters, New York Guard.
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