Conduct that was the subject of counseling memoranda may be the basis for disciplinary charges subsequently served on the employeeMatter of Board of Educ. of the Dundee Cent. School Dist. v Coleman, 2010 NY Slip Op 51684(U), Decided on October 1, 2010, Supreme Court, Yates County, Judge W. Patrick Falvey [Not selected for publication in the Official Reports]
The Board of Education of the Dundee Central School District filed disciplinary charges against Douglas Coleman, a tenured social studies teacher, pursuant to Education Law §3020-a.
The Hearing Officer found the Coleman guilty of some of the charges and dismissed others. He imposed a penalty of suspension from all teaching duties without pay, but directed Dundee to continue paying its contributions for Coleman’s medical insurance coverage during the period of Coleman's suspension without pay. In accordance with the Hearing Officer's decision, Dundee set Coleman’s suspension without pay for the period from June 2, 2010 through February 1, 2011.
Dundee then filed a petition pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] asking the court to vacate a portion of the Hearing Officer's decision. Dundee argued that the Hearing Officer “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.”
The two major points advanced by Dundee:
1. The Hearing Officer was incorrect in dismissing certain charges that Dundee filed against Coleman on the theory that the school district had earlier given Coleman “counseling memos concerning the underlying conduct that gave rise to them.”
2. The Hearing Officer's determination that the school district must continue to pay employer contributions for Coleman’s health insurance coverage during his 6-month suspension without pay was inconsistent with Education Law §3020-a(4)(a), which section, it argued, “necessarily involves a suspension of all payments by Dundee for Coleman's benefit.”
As to the dismissal of certain of the disciplinary charges filed against Coleman, Judge Falvey said that “There is no support for the premise that if a School District gives a counseling memo in the first instance, rather than immediately proceeding to bring formal charges, that it has somehow waived its right to do so at a future date.”
Judge Falvey explained that it was clear from case law that a school district is not precluded from including incidents giving rise to counseling memoranda as part of formal charges in a Education Law §3020-a proceeding, citing Hoyt v. Board of Education of the Webuttuck Central School District, 52 NY2d 625 and Cohn v. Board of Education of the City School District of the City of New York, 74 AD3d 57.*
In the words of the court: “The gist of the foregoing cases stands for the proposition that teachers are not entitled to have Education Law §3020-a disciplinary protections just because a counseling memo issues. Rather, the courts note that the teachers are given an opportunity to file their written responses to the counseling memos and further action may never be taken against them. However, in the event formal disciplinary proceedings ensue the teachers are entitled to their full panoply of rights and protections under Education Law §3020-a. Clearly, based upon the foregoing case law, it is anticipated that school districts may choose to seek disciplinary charges against teachers based upon the totality of the circumstances the school districts are reviewing.”
Accordingly, Judge Falvey vacated the Hearing Officer's dismissal of Charge 1, Specifications 1.1, 1.2 and 1.3, as well as Charge 2, Specifications 2.1, 2.2 and 2.3.**
With respect to the Hearing Officer directing Dundee to continue making its employer contributions for Coleman’s health insurance premiums during the period of his suspension without pay, the court agreed with the school district that "a suspension without pay" pursuant to Education Law §3020-a(4)(a) necessarily involves a suspension of all payments by Dundee for Coleman's benefit.”
Judge Falvey then vacated the “Hearing Officer’s direction that Dundee pay for Coleman's health insurance benefits during his period of suspension,” explaining that “The statutory scheme clearly contemplates suspension of all financial benefits upon a suspension without pay.”
In addition, the court directed Coleman to reimburse Dundee for any such costs already advanced on Coleman's behalf by Dundee and Dundee was “immediately stayed from making any further contributions during the suspension period.”
Finally, Judge Falvey directed the Hearing Officer to reconsider Specifications 1.1 - 1.3 and 2.1 - 2.3, commenting that in the event the Hearing Officer "finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty."
In making its ruling, the Court said that Coleman's suspension was to continue in accordance with the Hearing Officer's existing decision, subject to any modification following the Hearing Officer’s reconsideration of the matter as directed by the court.
Harvey Randall Comments: As to the decision's addressing the payment of health insurance premiums during the period of a disciplinary suspension, such an individual remains an employee while so suspended without pay and may continue in the health insurance plan but if he or she remains in the plan, he or she is required to pay both the employer contribution and the employee contribution while he or she of "off the payroll." Technically, the individual is on "leave without pay" for a period equal in length to the period of suspension without pay imposed as the disciplinary penalty.
Although the ruling does not indicate the carrier of the health insurance plan provided by the school district, were it the State's health insurance plan [NYSHIP] 4 NYCRR 73.3(b)(1) would obtain. 4 NYCRR 73.3(b)(1), in pertinent part, provides: An employee on leave without pay … shall be required to pay the entire charge (both employee's and employer's contributions) on account of such coverage for each full pay period of absence .... [emphasis supplied].
Assuming, without deciding, that Dundee is not a participating employer in NYSHIP, the court's directive that Coleman reimburse Dundee for any such costs it already advanced on Coleman's behalf as premiums in a non-NYSHIP plan and staying Dundee from making any further employer contributions for health insurance during Coleman’s period of suspension without pay is consistent with the policy set out in 4 NYCRR 73.3(b)(1) with respect to participating employers.
With regard to State's dental insurance plan,*** 4 NYCRR 74.3(a) provides as follows:
Contributions. (a) Rate of contribution. The rate of contribution of the State on account of the coverage of its employees and their dependents shall be 100 percent of the charge on account of individual coverage and 100 percent of the charge on account of dependent coverage. Notwithstanding the foregoing provisions an employee on leave without pay, whose coverage is continued pursuant to this Part shall be required to pay the entire charge on account of such coverage for each full month of absence [emphasis supplied].
* The undersigned notes that the court also cited "Employment History and Disciplinary Action by Harvey Randall, 2001 No. 2 Pub. Emp. L. Notes 27," in its ruling on this point.
** The matter was remanded to the Hearing Officer to reconsider Specifications 1.1 - 1.3 and 2.1 - 2.3 with the comment that “If the Hearing Officer finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty.”
*** The State’s dental plan is available to employees of the State as an employer and to the employees of a public authority, public benefit corporation, or quasi-public organization of the State submitting a certified copy of a resolution of its governing body electing such inclusion to the President of the State Civil Service Commission.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51684.htm
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NYPPL
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.
Oct 4, 2010
A disability that causes or contributes to an employee’s decision to retire constitutes an involuntary withdrawal from the labor market
A disability that causes or contributes to an employee’s decision to retire constitutes an involuntary withdrawal from the labor market Matter of Jimerson v New York City Police Dept., 2010 NY Slip Op 06729, Decided on September 30, 2010, Appellate Division, Third Department
Delores Jimerson was employed as a senior administrative aide by the New York City Police Department. In May 2002, claimant applied for workers' compensation benefits claiming injuries to her hands, neck and back due to repetitive movement associated with her employment. A work-related injury to the neck and back was ultimately established.
Jimerson continued to work for the Police Department but ultimately claimed that she was totally disabled from working.*
A Workers' Compensation Law Judge determined that Jimerson had voluntarily removed herself from the labor market and denied her additional workers' compensation benefits. The Workers’ Compensation Board subsequently affirmed the Administrative Law Judge’s determination that Jimerson had voluntarily removed herself from the labor market.
In response to Jimerson appeal, the Appellate Division commented that "Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board to resolve and, if supported by substantial evidence in the record, the Board's resolution of that issue will not be disturbed." However, the court continued, “It is well settled … that "a retirement is an involuntary withdrawal if the claimant's disability caused or contributed to the decision to retire."
Reviewing the record, the Appellate Division said that it did not find substantial evidence to support the Board's determination that Jimerson had voluntarily withdrew from the labor market. Although, said the court, the Board found that Jimerson "was able to perform her regular job duties without restriction on a full-time basis until removing herself from the labor market," there is a complete absence of evidence to support such finding. Indeed, the decision notes that “there is substantial evidence to the contrary.”
The Appellate Division then reversed the Board’s determination and remanded the matter to it for “further proceedings not inconsistent with this Court's decision.”
* Jimerson retired in November 2006.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06729.htm
NYPPL
Delores Jimerson was employed as a senior administrative aide by the New York City Police Department. In May 2002, claimant applied for workers' compensation benefits claiming injuries to her hands, neck and back due to repetitive movement associated with her employment. A work-related injury to the neck and back was ultimately established.
Jimerson continued to work for the Police Department but ultimately claimed that she was totally disabled from working.*
A Workers' Compensation Law Judge determined that Jimerson had voluntarily removed herself from the labor market and denied her additional workers' compensation benefits. The Workers’ Compensation Board subsequently affirmed the Administrative Law Judge’s determination that Jimerson had voluntarily removed herself from the labor market.
In response to Jimerson appeal, the Appellate Division commented that "Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board to resolve and, if supported by substantial evidence in the record, the Board's resolution of that issue will not be disturbed." However, the court continued, “It is well settled … that "a retirement is an involuntary withdrawal if the claimant's disability caused or contributed to the decision to retire."
Reviewing the record, the Appellate Division said that it did not find substantial evidence to support the Board's determination that Jimerson had voluntarily withdrew from the labor market. Although, said the court, the Board found that Jimerson "was able to perform her regular job duties without restriction on a full-time basis until removing herself from the labor market," there is a complete absence of evidence to support such finding. Indeed, the decision notes that “there is substantial evidence to the contrary.”
The Appellate Division then reversed the Board’s determination and remanded the matter to it for “further proceedings not inconsistent with this Court's decision.”
* Jimerson retired in November 2006.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06729.htm
NYPPL
Asserting rights not covered by the Taylor Law collective bargaining agreement
Asserting rights not covered by the Taylor Law collective bargaining agreement
CSEA v Nassau Co., App. Div., 2nd Dept., 264 AD2d 798, Motion for leave to appeal denied, 94 NY2d 759
Clearly, a public employee union may, under appropriate circumstances, file a lawsuit, or demand arbitration, for an alleged breach of a collective bargaining agreement. May an employee organization representing public employees sue on the basis of alleged violations of rights not included in a Taylor Law agreement?
In Aeneas McDonald Police Benevolent Association v City of Geneva, 92 NY2d 326, the Court of Appeals said a public sector labor union may assert rights not covered in its collective bargaining agreement if it can show that:
(a) one or more of its members has standing to sue;
(b) the interests sought to be protected are sufficiently germane to the union to satisfy the court that the union is an appropriate representative of those interests; and
(c) Individual members of the organization” are not required to assert the claim in for the tribunal to provide complete relief.
In this instance, CSEA sued, seeking reinstatement and back pay for members of its collective bargaining unit laid off as a result of Nassau County’s 1992 budget difficulties. Its theory: the layoff was breach of its collective bargaining agreement with the county.
The Appellate Division affirmed a lower court’s ruling that CSEA lacked standing to maintain the action. While couched in terms of a contract violation, the court said that there was no underlying contract provision involved.
As to CSEA’s standing under the Aeneas McDonald Police Benevolent Association doctrine, the court found that it failed to meet the third test set by the Court of Appeals since the participation of the individuals affected was required in this instance.
The case arose as the result of the county administration terminating or demoting some 2,000 employees in response to its 1992 “budget crisis.” One employee who was affected by this, Joseph E. Torre, successfully challenged the action taken against him as violative of the doctrine of legislative equivalency [Torre v County of Nassau, 86 NY2d 421].
Simply stated, the doctrine holds that “a position created by a legislative act must be abolished by a correlative legislative act.” In other words, a county administrator may not unilaterally abolish a position created by the legislature.
A number of county workers affected by the abolition of positions in 1992 have attempted to interpose legislative equivalency claims in an effort to attain reinstatement and back salary.
When CSEA alleged a breach of the controlling Taylor Law agreement in an effort to win reinstatement for individuals in the collective bargaining unit laid off in 1992, the court said that “it is clear that, in reality, the CSEA is attempting to assert a Torre legislative equivalency claim on behalf of all aggrieved employees.” Since it is “the nature and origin of the wrong, the substance and not the form, which controls,” the Appellate Division held that the lower court’s dismissal of CSEA’s petition was correct.
According to the ruling, “the claimed wrong and the rights sought to be enforced arise outside the four corners of the collective bargaining agreement.” Therefore, CSEA had to show that it satisfied the three-prong test set out in the Aeneas McDonald decision in order to maintain the action. The Appellate Division said that CSEA failed to meet the “third prong of the test.”
The Appellate Division ruled that the individual circumstances of each employee would have to be considered to determine whether or not the Torre rule was violated.
The court noted that it had earlier addressed the issue in Weitzenbergh v Nassau County Department of Recreation and Parks, 249 AD2d 538. It denied class action status in the Weitzenbergh case, noting that “there were numerous differences among members of the proposed class and no evidentiary support for the proposition that their positions were improperly abolished under the doctrine of legislative equivalency.”
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CSEA v Nassau Co., App. Div., 2nd Dept., 264 AD2d 798, Motion for leave to appeal denied, 94 NY2d 759
Clearly, a public employee union may, under appropriate circumstances, file a lawsuit, or demand arbitration, for an alleged breach of a collective bargaining agreement. May an employee organization representing public employees sue on the basis of alleged violations of rights not included in a Taylor Law agreement?
In Aeneas McDonald Police Benevolent Association v City of Geneva, 92 NY2d 326, the Court of Appeals said a public sector labor union may assert rights not covered in its collective bargaining agreement if it can show that:
(a) one or more of its members has standing to sue;
(b) the interests sought to be protected are sufficiently germane to the union to satisfy the court that the union is an appropriate representative of those interests; and
(c) Individual members of the organization” are not required to assert the claim in for the tribunal to provide complete relief.
In this instance, CSEA sued, seeking reinstatement and back pay for members of its collective bargaining unit laid off as a result of Nassau County’s 1992 budget difficulties. Its theory: the layoff was breach of its collective bargaining agreement with the county.
The Appellate Division affirmed a lower court’s ruling that CSEA lacked standing to maintain the action. While couched in terms of a contract violation, the court said that there was no underlying contract provision involved.
As to CSEA’s standing under the Aeneas McDonald Police Benevolent Association doctrine, the court found that it failed to meet the third test set by the Court of Appeals since the participation of the individuals affected was required in this instance.
The case arose as the result of the county administration terminating or demoting some 2,000 employees in response to its 1992 “budget crisis.” One employee who was affected by this, Joseph E. Torre, successfully challenged the action taken against him as violative of the doctrine of legislative equivalency [Torre v County of Nassau, 86 NY2d 421].
Simply stated, the doctrine holds that “a position created by a legislative act must be abolished by a correlative legislative act.” In other words, a county administrator may not unilaterally abolish a position created by the legislature.
A number of county workers affected by the abolition of positions in 1992 have attempted to interpose legislative equivalency claims in an effort to attain reinstatement and back salary.
When CSEA alleged a breach of the controlling Taylor Law agreement in an effort to win reinstatement for individuals in the collective bargaining unit laid off in 1992, the court said that “it is clear that, in reality, the CSEA is attempting to assert a Torre legislative equivalency claim on behalf of all aggrieved employees.” Since it is “the nature and origin of the wrong, the substance and not the form, which controls,” the Appellate Division held that the lower court’s dismissal of CSEA’s petition was correct.
According to the ruling, “the claimed wrong and the rights sought to be enforced arise outside the four corners of the collective bargaining agreement.” Therefore, CSEA had to show that it satisfied the three-prong test set out in the Aeneas McDonald decision in order to maintain the action. The Appellate Division said that CSEA failed to meet the “third prong of the test.”
The Appellate Division ruled that the individual circumstances of each employee would have to be considered to determine whether or not the Torre rule was violated.
The court noted that it had earlier addressed the issue in Weitzenbergh v Nassau County Department of Recreation and Parks, 249 AD2d 538. It denied class action status in the Weitzenbergh case, noting that “there were numerous differences among members of the proposed class and no evidentiary support for the proposition that their positions were improperly abolished under the doctrine of legislative equivalency.”
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Suing for damages for on-the-job personal injury pursuant to General Municipal Law Section 205-e and the firefighter’s rule
Suing for damages for on-the-job personal injury pursuant to General Municipal Law Section 205-e and the firefighter’s rule
Flynn v City of New York, App. Div., First Department, 258 AD2d 129
[Decided with Marron v City of New York, App. Div., First Department]
Section 205-e of the General Municipal Law grants police officers, or their representatives, the right to bring legal action to recover damages for personal injuries or death resulting from another person’s negligence in failing to comply with statutory or regulatory requirements. In addition, Section 205-e provides that “liability may be based on a fellow officer’s conduct,” [see Gonzalez v Iocovellosi, 249 AD2d 143].
In the Flynn and Marron cases the question was whether officers injured in a riot could sue the department under Section 205-e if they could show that their injuries stemmed from a commanding officer’s failure to follow provisions set out in a police department’s training manual and its patrol guide.
The Appellate Division concluded that a “Police Department’s training manual and Patrol Guide provisions cannot serve as the basis of such a claim.” It said that suing pursuant to Section 205-e is limited to the negligent non-compliance with the requirements of any governmental statutes, ordinances, rules, orders and requirements, citing Desiderio v City of New York, 236 AD2d 224.
Kevin Flynn and Steven Marron, both New York City police officers, claimed that the injuries they suffered during a street disturbance were the direct result of Deputy Inspector Michael Julian’s order not to bring any “hats [or] bats” and other protective gear “traditionally used by police in riot situations” despite their availability in a nearby police van. Julian was the commanding officer of their precinct and the officer in charge.
Flynn contended that General Municipal Law Section 205-e applied because the “mandates and requirements” of the Police Department’s Patrol Guide and the Department’s “temporary and standard operating procedures” were not followed.
Disagreeing with Flynn’s argument, the Appellate Division said that “[t]he facts here present a compelling case for the application of the firefighter’s rule.” The rule recognizes that public safety work is inherently dangerous, and is a general bar to officers suing for line-of-duty injuries. The court said that both Flynn and Marron “knew that the crowd was rioting and were well aware of the dangers presented.”
This situation, according to the decision “is hardly a case where ... a patrolman was injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving [the] injury”. The court said that the “record indisputably discloses” that both Flynn and Marron were performing a police function that put them at a heightened risk of injury.
Although the Court of Appeals did not consider the issue of whether an internal departmental guide or training manual constitutes a governmental rule or requirement in the Desmond case [Desmond v City of New York, 88 NY2d 455], it held that Section 205-e was not “intended to give police officers a right to sue for breaches of any and all governmental pronouncements of whatever type and regardless of how general or specific those pronouncements might be.”
The Appellate Division said that in enacting Section 205-e the Legislature did not intend to “upset the settled view that the violation of internal agency memoranda or manuals imposing a higher standard of care on a defendant than that imposed by law could not be the basis of liability against governmental entities.” Thus, said the court, the Supreme Court judge should have granted the City’s motion for summary judgment and dismissed Flynn’s and Marron’s petitions.
The Appellate Division characterized the City’s patrol guide and its training manual as follows:
Neither the Patrol Guide nor the training manual constitutes a well-developed body of law and regulation. They do not even constitute formal rules of the Police Department. The Patrol Guide is an internal manual intended solely for members of the Police Department. It is a compilation of hundreds of pages of guidelines covering every aspect of police life and conduct, including subjects as diverse as personal appearance, financial restrictions, vacation policy, residency requirements and salute courtesies. The Guide serves as the vehicle by which the Police Department regulates itself. That, in some circumstances, certain provisions of the Patrol Guide may also affect the public does not undermine its essentially intra-agency character.
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Flynn v City of New York, App. Div., First Department, 258 AD2d 129
[Decided with Marron v City of New York, App. Div., First Department]
Section 205-e of the General Municipal Law grants police officers, or their representatives, the right to bring legal action to recover damages for personal injuries or death resulting from another person’s negligence in failing to comply with statutory or regulatory requirements. In addition, Section 205-e provides that “liability may be based on a fellow officer’s conduct,” [see Gonzalez v Iocovellosi, 249 AD2d 143].
In the Flynn and Marron cases the question was whether officers injured in a riot could sue the department under Section 205-e if they could show that their injuries stemmed from a commanding officer’s failure to follow provisions set out in a police department’s training manual and its patrol guide.
The Appellate Division concluded that a “Police Department’s training manual and Patrol Guide provisions cannot serve as the basis of such a claim.” It said that suing pursuant to Section 205-e is limited to the negligent non-compliance with the requirements of any governmental statutes, ordinances, rules, orders and requirements, citing Desiderio v City of New York, 236 AD2d 224.
Kevin Flynn and Steven Marron, both New York City police officers, claimed that the injuries they suffered during a street disturbance were the direct result of Deputy Inspector Michael Julian’s order not to bring any “hats [or] bats” and other protective gear “traditionally used by police in riot situations” despite their availability in a nearby police van. Julian was the commanding officer of their precinct and the officer in charge.
Flynn contended that General Municipal Law Section 205-e applied because the “mandates and requirements” of the Police Department’s Patrol Guide and the Department’s “temporary and standard operating procedures” were not followed.
Disagreeing with Flynn’s argument, the Appellate Division said that “[t]he facts here present a compelling case for the application of the firefighter’s rule.” The rule recognizes that public safety work is inherently dangerous, and is a general bar to officers suing for line-of-duty injuries. The court said that both Flynn and Marron “knew that the crowd was rioting and were well aware of the dangers presented.”
This situation, according to the decision “is hardly a case where ... a patrolman was injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving [the] injury”. The court said that the “record indisputably discloses” that both Flynn and Marron were performing a police function that put them at a heightened risk of injury.
Although the Court of Appeals did not consider the issue of whether an internal departmental guide or training manual constitutes a governmental rule or requirement in the Desmond case [Desmond v City of New York, 88 NY2d 455], it held that Section 205-e was not “intended to give police officers a right to sue for breaches of any and all governmental pronouncements of whatever type and regardless of how general or specific those pronouncements might be.”
The Appellate Division said that in enacting Section 205-e the Legislature did not intend to “upset the settled view that the violation of internal agency memoranda or manuals imposing a higher standard of care on a defendant than that imposed by law could not be the basis of liability against governmental entities.” Thus, said the court, the Supreme Court judge should have granted the City’s motion for summary judgment and dismissed Flynn’s and Marron’s petitions.
The Appellate Division characterized the City’s patrol guide and its training manual as follows:
Neither the Patrol Guide nor the training manual constitutes a well-developed body of law and regulation. They do not even constitute formal rules of the Police Department. The Patrol Guide is an internal manual intended solely for members of the Police Department. It is a compilation of hundreds of pages of guidelines covering every aspect of police life and conduct, including subjects as diverse as personal appearance, financial restrictions, vacation policy, residency requirements and salute courtesies. The Guide serves as the vehicle by which the Police Department regulates itself. That, in some circumstances, certain provisions of the Patrol Guide may also affect the public does not undermine its essentially intra-agency character.
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Involuntary placement of employee on medical leave
Involuntary placement of employee on medical leave
Evans v NYS Dept. of Health et al, 2nd Cir., No. 98-7160(L)
Due process requirements generally prevent public employers in New York State from removing employees or placing them on leave without a hearing. Exceptions are permitted under Section 72 of the Civil Service Law, which permits public employers to place individuals on involuntary medical leave without first having a hearing in cases in which the appointing authority determines that the continued presence of the individual on the job constitutes a hazard to the employee, or his or her co-workers or to the public. [Section 72.5]*
Brenda Evans charged that the State Department of Health had violated her constitutional right to due process when she was involuntarily placed on medical leave pursuant to Section 72.
Evans suffered a seizure and initially actually placed herself on medical leave. As it frequently the case in such situations, however, Evans viewed her medical leave being converted into “involuntary sick leave” when the appointing authority refused to allow her to return to duty unless she underwent a medical evaluation and was found qualified to do so.
The Second Circuit U.S. Court of Appeals in New York found in favor of the department. The ruling suggests that if an employer follows the procedures mandated by Section 72, its actions will pass judicial scrutiny on due process grounds. The court noted that the law allows the employer to place the employee on involuntary medical leave following a medical examination as long as the individual has a “right to a subsequent hearing.”
The Rules of the State Civil Service Commission provide that employee on sick-leave may, as a condition for return, be required to undergo medical examination [4 NYCRR 28-1.3(e)]. Conceding that Evans had an “important interest in continued employment,” the Circuit Court concluded that such an interest is limited where the employee is placed on medical leave rather than terminated.*
“[I]n determining what process is due, account must be taken of the length and finality of the deprivation” said the court. “On the facts of this case,” the court held that “it was reasonable to believe that [Evans] had been afforded due process.” The decision notes that prior to the seizure, Evans’ examining physician had recommended that she be placed on medical leave. But the department, consistent with the mandates of Section 72, initially allowed her to remain at work pending a hearing.
Applying a balancing test, the decision states that “[o]n the other side of the scale,” the appointing authority took reasonable steps to assure itself that placing Evans on medical leave was appropriate. “In light of those factors, and the State’s strong interest in protecting itself against disruptive employee behavior, it was reasonable to believe that [Evans] had been afforded due process.”
The Circuit Court said that “[t]o determine the process due [issue], we must weigh (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used, and the probable value of additional or different procedural safeguards; and (3) the government’s interest,” citing Mathews v Eldridge, 424 U.S. 319.
In addition, Evans filed claims under 42 USC. Sections 1981, 1983 and 1985 alleging interference with her constitutional free speech, property and contract rights and that she was subjected to a hostile work environment. Named as defendants were various state entities. The decision notes that “neither a State nor its officials acting in their official capacities are ‘persons’ under Section 1983,” citing Will v Michigan Department of State Police, 491 U.S. 58.
Evans also ran in a wall in her effort to sue certain named officials “in their respective personal capacities.” Her attempt to sue these officials in their “personal capacity,” said the court, is barred by the qualified immunity held by these officials.
The doctrine of qualified immunity protects government officials from personal liability if their conduct either: (1) “did not violate clearly established rights of which a reasonable person would have known, or” (2) “it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.”
* Civil Service Law Section 72 provides for leaves of absence resulting from non-work related injury or illness. Civil Service Law Section 71 [Workers’ Compensation Leave] provides for leaves of absence required as the result of a work-connected injury or illness.
* Section 73 of the Civil Service Law authorizes the “termination” of an individual who has been continuously absent on Section 72 leave for at least one year. However, this “termination” is not the same as a “dismissal” since the individual has an absolute right to return to the position, or a similar position, or be placed on a preferred list, if he or she applies for reinstatement within one year after his or her disability ends.
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Evans v NYS Dept. of Health et al, 2nd Cir., No. 98-7160(L)
Due process requirements generally prevent public employers in New York State from removing employees or placing them on leave without a hearing. Exceptions are permitted under Section 72 of the Civil Service Law, which permits public employers to place individuals on involuntary medical leave without first having a hearing in cases in which the appointing authority determines that the continued presence of the individual on the job constitutes a hazard to the employee, or his or her co-workers or to the public. [Section 72.5]*
Brenda Evans charged that the State Department of Health had violated her constitutional right to due process when she was involuntarily placed on medical leave pursuant to Section 72.
Evans suffered a seizure and initially actually placed herself on medical leave. As it frequently the case in such situations, however, Evans viewed her medical leave being converted into “involuntary sick leave” when the appointing authority refused to allow her to return to duty unless she underwent a medical evaluation and was found qualified to do so.
The Second Circuit U.S. Court of Appeals in New York found in favor of the department. The ruling suggests that if an employer follows the procedures mandated by Section 72, its actions will pass judicial scrutiny on due process grounds. The court noted that the law allows the employer to place the employee on involuntary medical leave following a medical examination as long as the individual has a “right to a subsequent hearing.”
The Rules of the State Civil Service Commission provide that employee on sick-leave may, as a condition for return, be required to undergo medical examination [4 NYCRR 28-1.3(e)]. Conceding that Evans had an “important interest in continued employment,” the Circuit Court concluded that such an interest is limited where the employee is placed on medical leave rather than terminated.*
“[I]n determining what process is due, account must be taken of the length and finality of the deprivation” said the court. “On the facts of this case,” the court held that “it was reasonable to believe that [Evans] had been afforded due process.” The decision notes that prior to the seizure, Evans’ examining physician had recommended that she be placed on medical leave. But the department, consistent with the mandates of Section 72, initially allowed her to remain at work pending a hearing.
Applying a balancing test, the decision states that “[o]n the other side of the scale,” the appointing authority took reasonable steps to assure itself that placing Evans on medical leave was appropriate. “In light of those factors, and the State’s strong interest in protecting itself against disruptive employee behavior, it was reasonable to believe that [Evans] had been afforded due process.”
The Circuit Court said that “[t]o determine the process due [issue], we must weigh (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used, and the probable value of additional or different procedural safeguards; and (3) the government’s interest,” citing Mathews v Eldridge, 424 U.S. 319.
In addition, Evans filed claims under 42 USC. Sections 1981, 1983 and 1985 alleging interference with her constitutional free speech, property and contract rights and that she was subjected to a hostile work environment. Named as defendants were various state entities. The decision notes that “neither a State nor its officials acting in their official capacities are ‘persons’ under Section 1983,” citing Will v Michigan Department of State Police, 491 U.S. 58.
Evans also ran in a wall in her effort to sue certain named officials “in their respective personal capacities.” Her attempt to sue these officials in their “personal capacity,” said the court, is barred by the qualified immunity held by these officials.
The doctrine of qualified immunity protects government officials from personal liability if their conduct either: (1) “did not violate clearly established rights of which a reasonable person would have known, or” (2) “it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.”
* Civil Service Law Section 72 provides for leaves of absence resulting from non-work related injury or illness. Civil Service Law Section 71 [Workers’ Compensation Leave] provides for leaves of absence required as the result of a work-connected injury or illness.
* Section 73 of the Civil Service Law authorizes the “termination” of an individual who has been continuously absent on Section 72 leave for at least one year. However, this “termination” is not the same as a “dismissal” since the individual has an absolute right to return to the position, or a similar position, or be placed on a preferred list, if he or she applies for reinstatement within one year after his or her disability ends.
.
Designating employee as managerial or confidential
Designating employee as managerial or confidential
Lippman v PERB, App. Div., Third Dept., 263 AD2d 891
The designation of managerial and confidential employees within the meaning of the Taylor Law is important to both employers and unions. In the Lippman case the Appellate Division, Third Department, set out the criteria courts follow in reviewing determinations by the Public Employment Relations Board [PERB] concerning the designation of such personnel.
PERB denied a request by the Office of Court Administration to designate nine high-level, nonjudicial Unified Court System [UCS] employees as managerial or confidential pursuant to Civil Service Law Section 201(7).
Employees designated “managerial or confidential” are excluded from the definition of public employees and are generally not covered “by the myriad of rights and protections afforded to public employees under the Taylor Law.”
The nine individuals served in position with the Court of Appeals, the Law Reporting Bureau and the First and Second Appellate Divisions and were then in a negotiating unit represented by the Civil Service Employees Association, Local 1000.
The Appellate Division affirmed PERB’s determination denying the nine managerial or confidential status on the authority of Court of Appeals decision in Rosen v Public Employment Relations Board, 72 NY2d 42.
Although UCS contended that the incumbents should designated managerial “based upon their role in the policy-making process of the courts where they work,” PERB had found that the nine did not “formulate policy” nor did they have a major role in personnel administration as contemplated by Civil Service Law Section 201(7)(a).
PERB’s “long-standing definitions of policy formulation” includes both “a person who has the authority or responsibility to select among options and to put a proposed policy into effect,” and a person “who participates with regularity in the essential process which results in a policy proposal and the decision to put such a proposal into effect.”
UCS contended that “employees need not be the ultimate decision makers to be designated as managerial policy formulators, and that it is sufficient if they assist the ultimate decision makers.” PERB, said the court, has recognized that the “definition of a policymaker is, and must be, sufficiently broad to include those relatively few individuals who directly assist the ultimate decision makers in reaching the decisions necessary to the conduct of the business of government.”
However, every employee who advise the ultimate decision makers is not automatically a policy formulator to be designated as managerial and excluded from the Taylor Law’s protections. Rather, the employer must demonstrate that the particular employee participates in the essential processes by which the employer makes its decisions regarding the department’s mission and the means by which those policy objectives can best be achieved.
The court said that it would defer to the expert charged with administering the Taylor Law -- PERB -- in view of its expertise with respect to the fundamental policies underlying that law.*
As to the standard the Appellate Division used: “‘[s]o long as [PERB’s] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections ... ‘“, the court said it would accept PERB’s construction if reasonable and not arbitrary or irrational, [Village of Lynbrook v PERB, 48 NY2d 398].
The Court said that “[t]he determination of who “directly assists” the ultimate decision makers necessarily involves drawing distinctions and lines among employees based, inter alia [among other things], upon the nature, timing and level of their involvement in the decision-making processes, and upon the practices and hierarchy of the employer.”
Based on the record before it, the Appellate Division concluded, PERB acted rationally in making such distinctions and determinations regarding these employees.
What about “supervisory employees working with or for managerial employees.” The decision notes that such personnel “are not automatically or presumably confidential employees within the meaning of Civil Service Law Section 201(7)(a)(ii).” “Indeed,” said the court, “knowledge of personnel or disciplinary matters is often inherent in supervisory positions and does not warrant a confidential designation where it is limited and does not encompass labor relations information significant to the basic mission of the employer.”
* In contrast, the Appellate Division pointed out that “where ... the question is one of pure statutory construction,” dependent only on accurate understanding of the legislative intent, judicial review is less restricted as “statutory construction is the function of the courts.”
.
Lippman v PERB, App. Div., Third Dept., 263 AD2d 891
The designation of managerial and confidential employees within the meaning of the Taylor Law is important to both employers and unions. In the Lippman case the Appellate Division, Third Department, set out the criteria courts follow in reviewing determinations by the Public Employment Relations Board [PERB] concerning the designation of such personnel.
PERB denied a request by the Office of Court Administration to designate nine high-level, nonjudicial Unified Court System [UCS] employees as managerial or confidential pursuant to Civil Service Law Section 201(7).
Employees designated “managerial or confidential” are excluded from the definition of public employees and are generally not covered “by the myriad of rights and protections afforded to public employees under the Taylor Law.”
The nine individuals served in position with the Court of Appeals, the Law Reporting Bureau and the First and Second Appellate Divisions and were then in a negotiating unit represented by the Civil Service Employees Association, Local 1000.
The Appellate Division affirmed PERB’s determination denying the nine managerial or confidential status on the authority of Court of Appeals decision in Rosen v Public Employment Relations Board, 72 NY2d 42.
Although UCS contended that the incumbents should designated managerial “based upon their role in the policy-making process of the courts where they work,” PERB had found that the nine did not “formulate policy” nor did they have a major role in personnel administration as contemplated by Civil Service Law Section 201(7)(a).
PERB’s “long-standing definitions of policy formulation” includes both “a person who has the authority or responsibility to select among options and to put a proposed policy into effect,” and a person “who participates with regularity in the essential process which results in a policy proposal and the decision to put such a proposal into effect.”
UCS contended that “employees need not be the ultimate decision makers to be designated as managerial policy formulators, and that it is sufficient if they assist the ultimate decision makers.” PERB, said the court, has recognized that the “definition of a policymaker is, and must be, sufficiently broad to include those relatively few individuals who directly assist the ultimate decision makers in reaching the decisions necessary to the conduct of the business of government.”
However, every employee who advise the ultimate decision makers is not automatically a policy formulator to be designated as managerial and excluded from the Taylor Law’s protections. Rather, the employer must demonstrate that the particular employee participates in the essential processes by which the employer makes its decisions regarding the department’s mission and the means by which those policy objectives can best be achieved.
The court said that it would defer to the expert charged with administering the Taylor Law -- PERB -- in view of its expertise with respect to the fundamental policies underlying that law.*
As to the standard the Appellate Division used: “‘[s]o long as [PERB’s] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections ... ‘“, the court said it would accept PERB’s construction if reasonable and not arbitrary or irrational, [Village of Lynbrook v PERB, 48 NY2d 398].
The Court said that “[t]he determination of who “directly assists” the ultimate decision makers necessarily involves drawing distinctions and lines among employees based, inter alia [among other things], upon the nature, timing and level of their involvement in the decision-making processes, and upon the practices and hierarchy of the employer.”
Based on the record before it, the Appellate Division concluded, PERB acted rationally in making such distinctions and determinations regarding these employees.
What about “supervisory employees working with or for managerial employees.” The decision notes that such personnel “are not automatically or presumably confidential employees within the meaning of Civil Service Law Section 201(7)(a)(ii).” “Indeed,” said the court, “knowledge of personnel or disciplinary matters is often inherent in supervisory positions and does not warrant a confidential designation where it is limited and does not encompass labor relations information significant to the basic mission of the employer.”
* In contrast, the Appellate Division pointed out that “where ... the question is one of pure statutory construction,” dependent only on accurate understanding of the legislative intent, judicial review is less restricted as “statutory construction is the function of the courts.”
.
Increasing workday hours held to adversely affect employee leave credits
Increasing workday hours held to adversely affect employee leave credits
Nagy v Board, Sup. Ct., Conn, #16003
Connecticut’s Supreme Court ruled that increasing the workday hours of state employees from seven hours to eight hours per day “devaluates” their accrued annual and sick leave credits. The remedy: increase the value of the employees’ annual and sick leave credits pro rata to the increase in their workday.
Two state assistant attorney generals, Robert A. Nagy and Hugh Barber, sued Connecticut contending that their standard seven-hour workday had been gradually lengthened to eight hours and this resulted in the devaluation of their previously earned leave accruals. The basic argument advanced by Connecticut: the relevant law provided for granting, and using, vacation and sick leave in “hour units” and therefore employees were to be charged on an “hour for hour” bases regardless of the employees’ rate of leave credit accumulation.
Nagy and Barber, on the other hand, contended that Connecticut’s interpretation resulted in their having to use eight hours of credit to cover a day of absence despite the fact that they had previously been limited to accruing credits based on a seven-hour workday: that is, they had accrued a day of credit equated to seven hours of leave time but were now required to use eight hours of leave time credit if they were absent for a day.
The court agreed and in effect held that Nagy and Barber were being “overcharged” leave credits for each “eight-hour day” of absence under the circumstances. It directed Connecticut to correct the situation.
.
Nagy v Board, Sup. Ct., Conn, #16003
Connecticut’s Supreme Court ruled that increasing the workday hours of state employees from seven hours to eight hours per day “devaluates” their accrued annual and sick leave credits. The remedy: increase the value of the employees’ annual and sick leave credits pro rata to the increase in their workday.
Two state assistant attorney generals, Robert A. Nagy and Hugh Barber, sued Connecticut contending that their standard seven-hour workday had been gradually lengthened to eight hours and this resulted in the devaluation of their previously earned leave accruals. The basic argument advanced by Connecticut: the relevant law provided for granting, and using, vacation and sick leave in “hour units” and therefore employees were to be charged on an “hour for hour” bases regardless of the employees’ rate of leave credit accumulation.
Nagy and Barber, on the other hand, contended that Connecticut’s interpretation resulted in their having to use eight hours of credit to cover a day of absence despite the fact that they had previously been limited to accruing credits based on a seven-hour workday: that is, they had accrued a day of credit equated to seven hours of leave time but were now required to use eight hours of leave time credit if they were absent for a day.
The court agreed and in effect held that Nagy and Barber were being “overcharged” leave credits for each “eight-hour day” of absence under the circumstances. It directed Connecticut to correct the situation.
.
Oct 2, 2010
Governor Paterson names New York State’s Chief Diversity Officer
Governor Paterson names New York State’s Chief Diversity Officer
Source: Office of the Governor
N.B. On October 1, 2010 Governor David A. Paterson announced that Carra Wallace has declined the appointment to the position of Chief Diversity Officer of New York State.
The Governor has asked Charlotte Hitchcock, his Chief of Staff, to assume the duties of this statutory role until December 31. In conjunction with the Governor's Counsel's office, Ms. Hitchcock was the point person for negotiations with the Legislature on the successful passage of this bill.
Governor Paterson had initially appointed Carra Wallace as the State’s first Chief Diversity Officer effective October 15, 2010. This position in the Executive Chamber was established pursuant to §4-a of the Executive Law.*
The Chief Diversity Officer is one of three positions in the Executive Chamber created by law. The other two are the “Secretary to the Governor” and the “Counsel to the governor.”**
According to the Office of the Governor, the Chief Diversity Officer's responsibilities include:
• Advising the Governor and the agencies regarding any measures necessary to ensure full compliance with Article fifteen-a of the Executive Law, the statute governing contracting with minority and women's business enterprises;
• Engaging in other actions assigned to him or her by the Governor relating to diversity in hiring or promotion of the State workforce and in encouraging diversity practices;
• Advising and assisting the Governor in formulating policies relating to workforce diversity and minority and women's business enterprises;
• Working with the director of the Division of Minority and Women's Business Development to prepare an annual plan for ensuring full compliance with article fifteen-a;
• Serving as a member of the State procurement council;
• Serving as the Governor's liaison with organizations representing minority and women-owned business enterprises and other organizations related to diversity in the State workforce and in State contracting;
• Serving as the Governor's liaison to the small business advisory council for issues related to the creation of a diverse workforce and State procurement practices relating to minority and women-owned business enterprises; and
• Reviewing and consulting with the director of minority and women's business development regarding policies relating to minority and women-owned business enterprise contract specialists at State agencies.
* §4-a of the Executive Law takes effect October 13, 2010.
** See §4 of the Executive Law.
.
Source: Office of the Governor
N.B. On October 1, 2010 Governor David A. Paterson announced that Carra Wallace has declined the appointment to the position of Chief Diversity Officer of New York State.
The Governor has asked Charlotte Hitchcock, his Chief of Staff, to assume the duties of this statutory role until December 31. In conjunction with the Governor's Counsel's office, Ms. Hitchcock was the point person for negotiations with the Legislature on the successful passage of this bill.
Governor Paterson had initially appointed Carra Wallace as the State’s first Chief Diversity Officer effective October 15, 2010. This position in the Executive Chamber was established pursuant to §4-a of the Executive Law.*
The Chief Diversity Officer is one of three positions in the Executive Chamber created by law. The other two are the “Secretary to the Governor” and the “Counsel to the governor.”**
According to the Office of the Governor, the Chief Diversity Officer's responsibilities include:
• Advising the Governor and the agencies regarding any measures necessary to ensure full compliance with Article fifteen-a of the Executive Law, the statute governing contracting with minority and women's business enterprises;
• Engaging in other actions assigned to him or her by the Governor relating to diversity in hiring or promotion of the State workforce and in encouraging diversity practices;
• Advising and assisting the Governor in formulating policies relating to workforce diversity and minority and women's business enterprises;
• Working with the director of the Division of Minority and Women's Business Development to prepare an annual plan for ensuring full compliance with article fifteen-a;
• Serving as a member of the State procurement council;
• Serving as the Governor's liaison with organizations representing minority and women-owned business enterprises and other organizations related to diversity in the State workforce and in State contracting;
• Serving as the Governor's liaison to the small business advisory council for issues related to the creation of a diverse workforce and State procurement practices relating to minority and women-owned business enterprises; and
• Reviewing and consulting with the director of minority and women's business development regarding policies relating to minority and women-owned business enterprise contract specialists at State agencies.
* §4-a of the Executive Law takes effect October 13, 2010.
** See §4 of the Executive Law.
.
Oct 1, 2010
OATH hearing officer denies 9-month postponement of disciplinary hearing while individual is on §72 disability leave
OATH hearing officer denies 9-month postponement of disciplinary hearing while individual is on §72 disability leave
New York City Department of Consumer Affairs v Santamaria, OATH Index #2455/10
NYPPL
The New York City Department of Consumer Affairs filed §75 disciplinary charges against Randi Santamaria alleging various acts of insubordination and “carelessness.” After several adjournments by both parties, Consumer Affairs asked the Administrative Law Judge to go forward with the disciplinary hearing scheduled for August 19 and 20, 2010.
Santamaria, however, had earlier requested leave under the Family Medical Leave Act based upon her mental health, her second request for such leave within the last two years. Consumer Affairs then had Santamaria evaluated by a psychiatrist. The psychiatrist found Santamaria “mentally unfit to work” and Consumer Affairs placed her on “a one-year involuntary leave under §72 of the Civil Service Law” effective May 13, 2010.
Prior to the scheduled disciplinary hearing Santamaria’s attorney asked for a stay of the §75 action based on Santamaria being place on §72 leave by the agency. Santamaria's attorney also stated that he was requesting a stay pending “the resolution" of the §72 proceedings and suggested that "should [Santamaria] not be able to return to work within the year, she could be terminated under §73 and the §75 case would be rendered moot.”*
Although OATH’s Administrative Law Judge John B. Spooner said that he was “skeptical of the legal soundness” of Consumer Affair’s decision “to proceed with a §75 proceeding immediately after finding an employee unfit and placing her out on involuntary leave, based upon the same acts charged in the misconduct case … nevertheless, [Santamaria's] request for a nine-month stay is problematic and cannot be granted.”**
Noting that an OATH Administrative Law Judge “possesses the power to adjourn an action ‘for good cause,’ lengthy adjournments due to another pending action have not been found to constitute sufficient cause and have generally been denied.”
Judge Spooner cited Department of Correction v. Noriega-Harvey, OATH Index No. 575/93, (“pendency of related litigation has apparently never been sufficient basis for grant of an indefinite adjournment of an OATH trial.”) and Department of Environmental Protection v. Bellach, OATH Index No. 1574/08 (denying respondent’s request for a stay of a disciplinary hearing during the pendency of criminal proceedings)” in support of his determination.
* This is not entirely accurate as an individual terminated from §72 leave pursuant to §73 of the Civil Service Law has the right to reinstatement to his or her former position in the event he or she applies for such reinstatement with the responsible civil service commission within one year after the termination of such disability. In the event the commission’s medical examiner certifies that the individual is physically and mentally fit to perform the duties of his or her former position, he or she is to be reinstated if a suitable position is available or place on a preferred list, depending on the situation.
** On this point ALJ Spooner said that at “the very least, the medical officer’s finding of unfitness in May 2010 would appear to significantly undermine the agency’s ability to establish, at a §75 hearing, that [Santamaria's] actions constituted intentional misconduct. At worst, seeking to punish an employee for conduct caused by a disability could arguably defy the entire policy underlying the legislature’s enactment of Civil Service Law §72 as an alternative to §75,” citing Dep’t of Housing Preservation & Development v. Chambart, OATH Index No. 380/84..
The decision is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-2455md.pdf
New York City Department of Consumer Affairs v Santamaria, OATH Index #2455/10
NYPPL
The New York City Department of Consumer Affairs filed §75 disciplinary charges against Randi Santamaria alleging various acts of insubordination and “carelessness.” After several adjournments by both parties, Consumer Affairs asked the Administrative Law Judge to go forward with the disciplinary hearing scheduled for August 19 and 20, 2010.
Santamaria, however, had earlier requested leave under the Family Medical Leave Act based upon her mental health, her second request for such leave within the last two years. Consumer Affairs then had Santamaria evaluated by a psychiatrist. The psychiatrist found Santamaria “mentally unfit to work” and Consumer Affairs placed her on “a one-year involuntary leave under §72 of the Civil Service Law” effective May 13, 2010.
Prior to the scheduled disciplinary hearing Santamaria’s attorney asked for a stay of the §75 action based on Santamaria being place on §72 leave by the agency. Santamaria's attorney also stated that he was requesting a stay pending “the resolution" of the §72 proceedings and suggested that "should [Santamaria] not be able to return to work within the year, she could be terminated under §73 and the §75 case would be rendered moot.”*
Although OATH’s Administrative Law Judge John B. Spooner said that he was “skeptical of the legal soundness” of Consumer Affair’s decision “to proceed with a §75 proceeding immediately after finding an employee unfit and placing her out on involuntary leave, based upon the same acts charged in the misconduct case … nevertheless, [Santamaria's] request for a nine-month stay is problematic and cannot be granted.”**
Noting that an OATH Administrative Law Judge “possesses the power to adjourn an action ‘for good cause,’ lengthy adjournments due to another pending action have not been found to constitute sufficient cause and have generally been denied.”
Judge Spooner cited Department of Correction v. Noriega-Harvey, OATH Index No. 575/93, (“pendency of related litigation has apparently never been sufficient basis for grant of an indefinite adjournment of an OATH trial.”) and Department of Environmental Protection v. Bellach, OATH Index No. 1574/08 (denying respondent’s request for a stay of a disciplinary hearing during the pendency of criminal proceedings)” in support of his determination.
* This is not entirely accurate as an individual terminated from §72 leave pursuant to §73 of the Civil Service Law has the right to reinstatement to his or her former position in the event he or she applies for such reinstatement with the responsible civil service commission within one year after the termination of such disability. In the event the commission’s medical examiner certifies that the individual is physically and mentally fit to perform the duties of his or her former position, he or she is to be reinstated if a suitable position is available or place on a preferred list, depending on the situation.
** On this point ALJ Spooner said that at “the very least, the medical officer’s finding of unfitness in May 2010 would appear to significantly undermine the agency’s ability to establish, at a §75 hearing, that [Santamaria's] actions constituted intentional misconduct. At worst, seeking to punish an employee for conduct caused by a disability could arguably defy the entire policy underlying the legislature’s enactment of Civil Service Law §72 as an alternative to §75,” citing Dep’t of Housing Preservation & Development v. Chambart, OATH Index No. 380/84..
The decision is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-2455md.pdf
Electronic document preservation
Electronic document preservation
Information concerning the retention and preservation of electronic records prepared by the State and political subdivisions of the State is available at http://www.archives.nysed.gov/a/records/mr_erecords.shtml
Major topics addressed include:
1. Conducting a records inventory
2. Inventorying electronic records, [Electronic Records Inventory workshop];
3. Organizing electronic records;
4. Preservation of electronic records for the “long-term;” and
5. Security of electronic records including protecting records in the event of fire, flood, vandalism, viruses, hackers and “hard drive crashes.”
The staff of the New York State Archives note that “Computers and other electronic devices create many of the new records we use today.” Also noted is the fact that “These records, although electronic in format, are the same as records in other formats. Electronic records show how you conduct business, make decisions, and carry out your work. They are evidence of decisions and actions. Fundamental records management principles apply to electronic records and all other record formats.”
Workshops addressing the basics concerning the care of electronic records are offered by the Office of the State Archives and are listed on the Internet at Managing Electronic Records .
The State Archives administers the Local Government Records Management Improvement Fund (LGRMIF) to assist local governments manage their records, including their electronic record-keeping systems. Contact the State Archives at (518) 474-6926 or via e-mail, or contact your Regional Advisory Officer for information concerning such assistance.
.NYPPL
Information concerning the retention and preservation of electronic records prepared by the State and political subdivisions of the State is available at http://www.archives.nysed.gov/a/records/mr_erecords.shtml
Major topics addressed include:
1. Conducting a records inventory
2. Inventorying electronic records, [Electronic Records Inventory workshop];
3. Organizing electronic records;
4. Preservation of electronic records for the “long-term;” and
5. Security of electronic records including protecting records in the event of fire, flood, vandalism, viruses, hackers and “hard drive crashes.”
The staff of the New York State Archives note that “Computers and other electronic devices create many of the new records we use today.” Also noted is the fact that “These records, although electronic in format, are the same as records in other formats. Electronic records show how you conduct business, make decisions, and carry out your work. They are evidence of decisions and actions. Fundamental records management principles apply to electronic records and all other record formats.”
Workshops addressing the basics concerning the care of electronic records are offered by the Office of the State Archives and are listed on the Internet at Managing Electronic Records .
The State Archives administers the Local Government Records Management Improvement Fund (LGRMIF) to assist local governments manage their records, including their electronic record-keeping systems. Contact the State Archives at (518) 474-6926 or via e-mail, or contact your Regional Advisory Officer for information concerning such assistance.
.NYPPL
EEOC alleges female employee “pressured to enter into a sham marriage” constitutes sexual harassment
EEOC alleges female employee “pressured to enter into a sham marriage” constitutes sexual harassment
Source: Posted on the Internet in CCH Workday. Reproduced with permission. Copyright© CCH 2010, All rights reserved. If you wish to become a subscriber to CCH Workday, please go to http://www.employmentlawdaily.com/
“This is definitely not the garden-variety sexual harassment case — compelling employees to marry is a new twist,” said regional attorney Robert Canino of the EEOC’s Dallas district office.
“Asking women to marry as a part of their job duties or terms of employment is not only illegal under Title VII, but if the idea is to circumvent the immigration laws of the United States, the discriminatory treatment also puts the employees themselves in jeopardy of violating federal laws.”
The CCH item reports:
"Courtesy Building Services, a Texas-based janitorial and maintenance service, violated Title VII by subjecting a female employee to sexual harassment, including being pressured to marry a stranger from Thailand to promote his efforts toward citizenship, the EEOC charged in a recent lawsuit.
"According to the agency, Operations Manager Melissa Gaona was subjected to unlawful sexual harassment starting in 2005. In addition to lewd remarks said to her or in her presence by management personnel, she was asked by a manager to enter into marriage with a stranger, a non-citizen, to enhance his opportunity to achieve citizenship.
“Enduring supervisors’ comments about women’s bodies and accounts of visits to the local strip clubs shouldn’t be a job requirement,” said EEOC supervisory trial attorney Toby Wosk Costas.
“And pressuring a worker to enter into a marriage she doesn’t want, for ulterior motives, is simply unconscionable. It adds up to a hostile work environment that certainly violates federal laws against discrimination.
"In a suit filed in the Northern District of Texas, the EEOC seeks relief for Gaona as well as injunctive relief, including a court order to prevent the company from engaging in similar discriminatory conduct in the future; compensatory damages for emotional harm; and punitive damages to deter future acts of employment discrimination."
.NYPPL
Source: Posted on the Internet in CCH Workday. Reproduced with permission. Copyright© CCH 2010, All rights reserved. If you wish to become a subscriber to CCH Workday, please go to http://www.employmentlawdaily.com/
“This is definitely not the garden-variety sexual harassment case — compelling employees to marry is a new twist,” said regional attorney Robert Canino of the EEOC’s Dallas district office.
“Asking women to marry as a part of their job duties or terms of employment is not only illegal under Title VII, but if the idea is to circumvent the immigration laws of the United States, the discriminatory treatment also puts the employees themselves in jeopardy of violating federal laws.”
The CCH item reports:
"Courtesy Building Services, a Texas-based janitorial and maintenance service, violated Title VII by subjecting a female employee to sexual harassment, including being pressured to marry a stranger from Thailand to promote his efforts toward citizenship, the EEOC charged in a recent lawsuit.
"According to the agency, Operations Manager Melissa Gaona was subjected to unlawful sexual harassment starting in 2005. In addition to lewd remarks said to her or in her presence by management personnel, she was asked by a manager to enter into marriage with a stranger, a non-citizen, to enhance his opportunity to achieve citizenship.
“Enduring supervisors’ comments about women’s bodies and accounts of visits to the local strip clubs shouldn’t be a job requirement,” said EEOC supervisory trial attorney Toby Wosk Costas.
“And pressuring a worker to enter into a marriage she doesn’t want, for ulterior motives, is simply unconscionable. It adds up to a hostile work environment that certainly violates federal laws against discrimination.
"In a suit filed in the Northern District of Texas, the EEOC seeks relief for Gaona as well as injunctive relief, including a court order to prevent the company from engaging in similar discriminatory conduct in the future; compensatory damages for emotional harm; and punitive damages to deter future acts of employment discrimination."
.NYPPL
School board not required to adjusting teaching schedules to avoid a layoff
School board not required to adjusting teaching schedules to avoid a layoff
Soukey v Cohoes City School Dist., Commissioner of Education Decision 14,106
Faced with a reduced work schedule or a perhaps layoff, a teacher may ask the school board to adjust the schedules of other teachers in order to retain him or her in a full-time position. Is the school board obligated to honor such a request?
This was one of the elements in Donna Soukey’s appeal to the Commissioner of Education. Soukey, tenured as a health teacher, was employed in a 6/10’s health teacher position following the abolishment of a full-time health teacher position by the district. Soukey was the least senior tenured health teacher at the time.
Soukey argued that the district “could have adjusted the schedules of other teachers ... to facilitate her assignment to classes within her various certification areas in order to retain her in full-time service.” She provided the Commissioner with examples of how the district could have accomplished this.
The Commissioner pointed out that a school board is “not required to shuffle the schedules of teachers in tenure areas other than health merely because [she] happens to hold certification in those areas.”
Noting that Soukey was the least senior teacher in the health tenure area, the Commissioner said that her services as a full time teacher were properly reduced. Commissioner Mills concluded that Cohoes was not required to make scheduling adjustments that would affect teachers’ services in any other tenure area in an effort to retain Soukey as a full-time employee.
The major element in Soukey’s appeal was her claim that she was not the least senior teacher in the health tenure area. The Commissioner ruled that there was nothing in the record to support overturning the district’s seniority determinations with respect to the several teachers in the health tenure area involved in this appeal.
Another aspect of the appeal concerned Soukey request for “reimbursement for the costs of bringing this appeal” as part of the relief she sought. The Commissioner responded by pointing out that he “lacks authority to award such costs and attorney’s fees in an appeal under Education Law Section 310” and dismissed this branch of Soukey’s appeal as well.
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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NYPPL
Soukey v Cohoes City School Dist., Commissioner of Education Decision 14,106
Faced with a reduced work schedule or a perhaps layoff, a teacher may ask the school board to adjust the schedules of other teachers in order to retain him or her in a full-time position. Is the school board obligated to honor such a request?
This was one of the elements in Donna Soukey’s appeal to the Commissioner of Education. Soukey, tenured as a health teacher, was employed in a 6/10’s health teacher position following the abolishment of a full-time health teacher position by the district. Soukey was the least senior tenured health teacher at the time.
Soukey argued that the district “could have adjusted the schedules of other teachers ... to facilitate her assignment to classes within her various certification areas in order to retain her in full-time service.” She provided the Commissioner with examples of how the district could have accomplished this.
The Commissioner pointed out that a school board is “not required to shuffle the schedules of teachers in tenure areas other than health merely because [she] happens to hold certification in those areas.”
Noting that Soukey was the least senior teacher in the health tenure area, the Commissioner said that her services as a full time teacher were properly reduced. Commissioner Mills concluded that Cohoes was not required to make scheduling adjustments that would affect teachers’ services in any other tenure area in an effort to retain Soukey as a full-time employee.
The major element in Soukey’s appeal was her claim that she was not the least senior teacher in the health tenure area. The Commissioner ruled that there was nothing in the record to support overturning the district’s seniority determinations with respect to the several teachers in the health tenure area involved in this appeal.
Another aspect of the appeal concerned Soukey request for “reimbursement for the costs of bringing this appeal” as part of the relief she sought. The Commissioner responded by pointing out that he “lacks authority to award such costs and attorney’s fees in an appeal under Education Law Section 310” and dismissed this branch of Soukey’s appeal as well.
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NYPPL
Considering employee sick leave bank requests
Considering employee sick leave bank requests
Pocantico Hills CSD v Teachers Assoc., App. Div., 2nd Dept. 264 AD2d 397, Motion to appeal denied, 94 NY2d 759
The Taylor Law Agreement between the Pocantico Hills Central School District and the Pocantico Hills Teachers Association provided for a sick leave bank for use by teachers absent as a result of an “extended, serious illness or serious injury.”
Two teachers applied for contract sick leave bank credits in connection with their respective “extended post-pregnancy leave.” The district and the association deadlocked over the question of approving the use of sick leave bank credits for this purpose. The Taylor Law agreement provided that in the event the parties could not agree with respect to a request for use of sick leave bank credits, the question was to be referred to a mutually agreed upon physician. The physician selected by the parties concluded that the teachers’ pregnancies did not constitute “extended, serious illness or serious injury” within the meaning of the relevant provisions of the agreement.
Relying on this determination, the district denied both applications to use the sick leave bank for these pregnancy-related absences.
The association demanded that the issue be submitted to arbitration in accordance with the contract grievance procedure. The district objected and obtained an order from a State Supreme Court judge staying the arbitration [see Article 75, Civil Practice Law and Rules].
The Appellate Division affirmed the lower court’s determination. It said that the teachers’ eligibility for sick leave bank credits had been determined in accordance with the tie-breaking provisions of the agreement.
The court ruled that the grievance procedure, which expressly limited arbitration to grievances arising from the violation of specific terms and provisions of the agreement, was not available to the association in this instance.
The Appellate Division said that under the facts of this case, the Supreme Court judge had correctly determined that the denials of the applications filed by the two teachers fell outside the arbitration provisions of the agreement and thus its issuing a stay was appropriate.
Two additional arguments were advanced by the Association in support of its position. It contended that:
1. The provisions of the agreement relating to the sick leave bank are ill-suited to pregnancy-related leaves; and/or
2. Special consideration should be given to pregnancy-related leave requests.”
The Appellate Division rejected both of the arguments, commenting that these constituted “a matter for negotiation, not arbitration.”
If, on the other hand, the physician determined that the teacher suffered an “extended, serious illness or serious injury,” presumably the individual would be deemed eligible for sick leave bank credits notwithstanding the fact that the particular medical condition in question was pregnancy-related.
.NYPPL
Pocantico Hills CSD v Teachers Assoc., App. Div., 2nd Dept. 264 AD2d 397, Motion to appeal denied, 94 NY2d 759
The Taylor Law Agreement between the Pocantico Hills Central School District and the Pocantico Hills Teachers Association provided for a sick leave bank for use by teachers absent as a result of an “extended, serious illness or serious injury.”
Two teachers applied for contract sick leave bank credits in connection with their respective “extended post-pregnancy leave.” The district and the association deadlocked over the question of approving the use of sick leave bank credits for this purpose. The Taylor Law agreement provided that in the event the parties could not agree with respect to a request for use of sick leave bank credits, the question was to be referred to a mutually agreed upon physician. The physician selected by the parties concluded that the teachers’ pregnancies did not constitute “extended, serious illness or serious injury” within the meaning of the relevant provisions of the agreement.
Relying on this determination, the district denied both applications to use the sick leave bank for these pregnancy-related absences.
The association demanded that the issue be submitted to arbitration in accordance with the contract grievance procedure. The district objected and obtained an order from a State Supreme Court judge staying the arbitration [see Article 75, Civil Practice Law and Rules].
The Appellate Division affirmed the lower court’s determination. It said that the teachers’ eligibility for sick leave bank credits had been determined in accordance with the tie-breaking provisions of the agreement.
The court ruled that the grievance procedure, which expressly limited arbitration to grievances arising from the violation of specific terms and provisions of the agreement, was not available to the association in this instance.
The Appellate Division said that under the facts of this case, the Supreme Court judge had correctly determined that the denials of the applications filed by the two teachers fell outside the arbitration provisions of the agreement and thus its issuing a stay was appropriate.
Two additional arguments were advanced by the Association in support of its position. It contended that:
1. The provisions of the agreement relating to the sick leave bank are ill-suited to pregnancy-related leaves; and/or
2. Special consideration should be given to pregnancy-related leave requests.”
The Appellate Division rejected both of the arguments, commenting that these constituted “a matter for negotiation, not arbitration.”
If, on the other hand, the physician determined that the teacher suffered an “extended, serious illness or serious injury,” presumably the individual would be deemed eligible for sick leave bank credits notwithstanding the fact that the particular medical condition in question was pregnancy-related.
.NYPPL
Determining a union’s right to arbitrate
Determining a union’s right to arbitrate
Batavia CSD v Batavia Teachers’ Assn., App. Div., Fourth Dept., 265 AD2d 806
Jefferson County v Jefferson Co. Deputy Sheriff’s Assn., App. Div., Fourth Dept., 265 AD2d 802
The Appellate Division, Fourth Department, handed down two rulings that addressed efforts by public employers to prevent the arbitration of grievances filed by unions on behalf of members.
The Batavia Case
The Batavia Teachers’ Association demanded arbitration of grievances it filed on behalf of two certified teachers who were not selected to fill vacant interscholastic coaching positions. The association contended that [1] the district’s selection procedure violated the negotiated agreement’s contract provisions dealing with appointment to coaching positions and [2] uncertified applicants were “improperly appointed when certified candidates were available.”
Essentially the school district asked for the stay of arbitration because “public policy prohibits an arbitrator from reviewing the Board’s hiring decisions.”
Here, however, the Appellate Division viewed this argument as irrelevant under the circumstances. It said that the association was not seeking to arbitrate the school board’s exercise of discretion in making those hiring decisions. Rather, said the court, the association claimed that the Board did not adhere to its procedural obligations in making its hiring decisions.
Accordingly, although part of the relief sought by the two employees was their respective appointment to the coaching positions, the Appellate Division ruled that public policy did not prohibit submission of these two grievances to arbitration, affirming a state Supreme Court justice’s ruling denying the district’s petition to stay the arbitration.
In Port Washington Union Free School District v Port Washington Teachers Association, 45 NY2d 411, the Court of Appeals said that “[a] stay of arbitration on [public] policy grounds is ‘premature and unjustified’, even though the remedy sought may not, due to [public] policy concerns, be enforceable, where it is possible that the arbitrator may use his broad powers to fashion a remedy ‘adequately narrowed to encompass only procedural guarantees’”.
Accordingly, in determining whether a public sector grievance is subject to arbitration, the court must first determine is whether or not arbitration of the subject matter of the grievances is authorized by the Taylor Law. As the Court of Appeals said in Liverpool CSD v United Liverpool Faculty Asso., 42 NY2d 509, if the demand for arbitration passes this first test, the court must then determine if the parties appear to have agreed “by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.”
Finding that the collective bargaining agreement contained a broad arbitration clause and that there was a “reasonable relationship” between the subject matter of the dispute and the general subject matter of the parties’ collective bargaining agreement, the Appellate Division concluded that the two grievances should be submitted to an arbitrator. The court commented that once the arbitrator assumes jurisdiction over the grievances, he or she will:
1. Make “a more exacting interpretation of the precise scope of the substantive provisions of the Taylor Law agreement; and
2. Determine whether the subject matter of the dispute fits within such substantive provisions.
The Jefferson County Case
Jefferson County Deputy Sheriff Gary M. Belch was found guilty of disciplinary charges by an arbitrator. The sheriff, however, imposed a harsher penalty than the one recommended by the arbitrator. As a result, the union served a demand for arbitration, claiming that the sheriff had imposed the heavier penalty in retaliation for Belch’s exercising his right to submit the disciplinary action to arbitration.
The Appellate Division ruled that the County’s petition for a stay of the arbitration should be denied. Although Jefferson County contended that the Sheriff’s decision to increase the penalty recommended by the arbitrator is not subject to further arbitration, the court said it disagreed.
According to the ruling, “the allegation of retaliation is covered under the agreement’s definition of grievance,” and thus the proper procedure to address a grievance is arbitration. The court said that with respect to other grounds for staying the arbitration advanced by the county, “it is for the arbitrator to determine whether this arbitration is barred by collateral estoppel or res judicata.”
There was a technical element to this appeal that should be noted. The county’s petition was initially rejected by a State Supreme Court justice on the grounds that it was untimely. The Appellate Division, however, observed the union’s demand for arbitration was served on the sheriff, rather than the proper party -- the county.
Why wasn’t service on the sheriff proper? Because, said the court,” the sheriff was neither a party to the collective bargaining agreement nor an individual designated to accept service on behalf of [the county].”
This failure to comply with the service provisions of Section 7503 of the Civil Practice Law and Rules tolled the time limit for service of a petition to stay arbitration. The county was subsequently properly served with the demand and therefore its motion to stay the arbitration was held timely as measured from the date of “proper service” on it.
Why it is necessary for a party to go to court to obtain a stay of arbitration? Because if it refuses to participate in the arbitration and does not have the authority of the court in the form of a “stay of arbitration,” the arbitration can proceed “in absentia.” For example, in Hall v Environmental Conservation, 235 AD2d 757, the Appellate Division ruled that an arbitrator may [1] proceed with a disciplinary arbitration notwithstanding the fact that the appointing authority refused to participate in the proceeding and [2] thereafter make a final, binding determination.
On the other hand, in Suffolk County v SCCC Faculty Association, the Appellate Division pointed out that if a party participates in arbitration when “it did not have to,” it cannot later seek to vacate the arbitration award “because it was not required to submit to the arbitration of the issue.”
.NYPPL
Batavia CSD v Batavia Teachers’ Assn., App. Div., Fourth Dept., 265 AD2d 806
Jefferson County v Jefferson Co. Deputy Sheriff’s Assn., App. Div., Fourth Dept., 265 AD2d 802
The Appellate Division, Fourth Department, handed down two rulings that addressed efforts by public employers to prevent the arbitration of grievances filed by unions on behalf of members.
The Batavia Case
The Batavia Teachers’ Association demanded arbitration of grievances it filed on behalf of two certified teachers who were not selected to fill vacant interscholastic coaching positions. The association contended that [1] the district’s selection procedure violated the negotiated agreement’s contract provisions dealing with appointment to coaching positions and [2] uncertified applicants were “improperly appointed when certified candidates were available.”
Essentially the school district asked for the stay of arbitration because “public policy prohibits an arbitrator from reviewing the Board’s hiring decisions.”
Here, however, the Appellate Division viewed this argument as irrelevant under the circumstances. It said that the association was not seeking to arbitrate the school board’s exercise of discretion in making those hiring decisions. Rather, said the court, the association claimed that the Board did not adhere to its procedural obligations in making its hiring decisions.
Accordingly, although part of the relief sought by the two employees was their respective appointment to the coaching positions, the Appellate Division ruled that public policy did not prohibit submission of these two grievances to arbitration, affirming a state Supreme Court justice’s ruling denying the district’s petition to stay the arbitration.
In Port Washington Union Free School District v Port Washington Teachers Association, 45 NY2d 411, the Court of Appeals said that “[a] stay of arbitration on [public] policy grounds is ‘premature and unjustified’, even though the remedy sought may not, due to [public] policy concerns, be enforceable, where it is possible that the arbitrator may use his broad powers to fashion a remedy ‘adequately narrowed to encompass only procedural guarantees’”.
Accordingly, in determining whether a public sector grievance is subject to arbitration, the court must first determine is whether or not arbitration of the subject matter of the grievances is authorized by the Taylor Law. As the Court of Appeals said in Liverpool CSD v United Liverpool Faculty Asso., 42 NY2d 509, if the demand for arbitration passes this first test, the court must then determine if the parties appear to have agreed “by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.”
Finding that the collective bargaining agreement contained a broad arbitration clause and that there was a “reasonable relationship” between the subject matter of the dispute and the general subject matter of the parties’ collective bargaining agreement, the Appellate Division concluded that the two grievances should be submitted to an arbitrator. The court commented that once the arbitrator assumes jurisdiction over the grievances, he or she will:
1. Make “a more exacting interpretation of the precise scope of the substantive provisions of the Taylor Law agreement; and
2. Determine whether the subject matter of the dispute fits within such substantive provisions.
The Jefferson County Case
Jefferson County Deputy Sheriff Gary M. Belch was found guilty of disciplinary charges by an arbitrator. The sheriff, however, imposed a harsher penalty than the one recommended by the arbitrator. As a result, the union served a demand for arbitration, claiming that the sheriff had imposed the heavier penalty in retaliation for Belch’s exercising his right to submit the disciplinary action to arbitration.
The Appellate Division ruled that the County’s petition for a stay of the arbitration should be denied. Although Jefferson County contended that the Sheriff’s decision to increase the penalty recommended by the arbitrator is not subject to further arbitration, the court said it disagreed.
According to the ruling, “the allegation of retaliation is covered under the agreement’s definition of grievance,” and thus the proper procedure to address a grievance is arbitration. The court said that with respect to other grounds for staying the arbitration advanced by the county, “it is for the arbitrator to determine whether this arbitration is barred by collateral estoppel or res judicata.”
There was a technical element to this appeal that should be noted. The county’s petition was initially rejected by a State Supreme Court justice on the grounds that it was untimely. The Appellate Division, however, observed the union’s demand for arbitration was served on the sheriff, rather than the proper party -- the county.
Why wasn’t service on the sheriff proper? Because, said the court,” the sheriff was neither a party to the collective bargaining agreement nor an individual designated to accept service on behalf of [the county].”
This failure to comply with the service provisions of Section 7503 of the Civil Practice Law and Rules tolled the time limit for service of a petition to stay arbitration. The county was subsequently properly served with the demand and therefore its motion to stay the arbitration was held timely as measured from the date of “proper service” on it.
Why it is necessary for a party to go to court to obtain a stay of arbitration? Because if it refuses to participate in the arbitration and does not have the authority of the court in the form of a “stay of arbitration,” the arbitration can proceed “in absentia.” For example, in Hall v Environmental Conservation, 235 AD2d 757, the Appellate Division ruled that an arbitrator may [1] proceed with a disciplinary arbitration notwithstanding the fact that the appointing authority refused to participate in the proceeding and [2] thereafter make a final, binding determination.
On the other hand, in Suffolk County v SCCC Faculty Association, the Appellate Division pointed out that if a party participates in arbitration when “it did not have to,” it cannot later seek to vacate the arbitration award “because it was not required to submit to the arbitration of the issue.”
.NYPPL
Appointment to the position of detective
Appointment to the position of detective
Ryff v Safir, App. Div., First Dept., 264 AD2d 349
The Ryff case sets out some standards that the Appellate Division, First Department, said should be considered in determining if a police officer who has temporarily served as a detective for at least 18 months is entitled to hold that title on a permanent basis without further examination.
Kevin T. Ryff, a New York City Police Department Harbor Unit Vessel Theft Team member, had been recommended for Detective Third Grade status by his commanding officer.
The recommendation reflected the commanding officer’s view that the duties of members of the Vessel Theft Team mirrored the investigative duties of the Detective Bureau investigators in the Auto Crime Division Special Operations Squad. Auto Crime Squad members were promoted to Detective Third Grade after 18 months of service.
New York City’s Administrative Code Section 14-103(b)(2) provides that any person who has received permanent appointment as a police officer and is temporarily assigned to perform the duties of a detective shall, whenever such assignment exceeds eighteen months in duration, be appointed as a detective and receive the compensation ordinarily paid to a detective performing such duties.*
The commissioner, however, rejected the recommendation, indicating that “the 18-month rule does not apply to the Harbor Unit Vessel Theft Team because that unit is not included in the ‘historical career path program’ it has for detective.” Ryff, however, persuaded a State Supreme Court judge to direct the commissioner to designate him a Detective Third Grade retroactive to the date he had completed 18 months of investigative service, with accompanying seniority and benefits. The Supreme Court judge ruled:
1. The commissioner “no longer has discretion to determine whether a particular assignment equals a detective function” and
2. It is the nature of the duties performed and whether they are equivalent to detective functions, not the specific unit in which they are performed, which is determinative” of whether the officer is entitled to be designated Detective Third Grade.
The Appellate Division, however, vacated the lower court’s order. Although the Supreme Court judge concluded that since Ryff “had performed “investigatory duties” for more than 18 months while with the Vessel Theft Team of the Harbor Unit, he was entitled to be designated as a Detective Third Grade with the requisite benefits,” the Appellate Division ruled that such a decision was premature. It said that a hearing was required to resolve two basic issues:
1. Does the scope of Administrative Code Section 14-103(b)(2) rest on the nature of the work performed and, if so,
2. Did Ryff’s work include “investigatory duties”?
Finding that the record was insufficient to determine whether the investigative duties actually performed by Ryff were comparable to those carried out by police officers who received detective status upon completion of 18 months of investigative duties performed in other units, the Appellate Division remanded the matter for a hearing to determine these two critical issues.**
This ruling suggests that such determinations must be made on a “case-by-case” basis and simply relying on the “official job description” will not be viewed by the courts as sufficient.
* New York State Civil Service Law Section 58.4(c), to the extent that it provided that sworn officers of municipal jurisdiction other than the City of New York were to be deemed “permanently appointed” as a detective after having temporarily served as a detective for at least 18 months, was held to violate Article 6, Section 5 [the “merit and fitness” requirement] of the State Constitution [Wood v Irving, 85 NY2d 238, 1995]. Chapter 134 of the Laws of 1997 was adopted in an effort to meet this criticism by the Court of Appeal, wherein the legislature stated “that an individual who performs in an investigatory position in a manner sufficiently satisfactory to the appropriate supervisors to hold such an assignment for a period of eighteen months, has demonstrated fitness for the position of detective or investigator within such police
or sheriffs department at least as sufficiently as could be ascertained by means of a competitive examination.”
** Ryff served as a member of the Police Department’s Harbor Unit’s Vessel Theft Team from April 4, 1995 to February 28, 1997, when he retired.
.NYPPL
Ryff v Safir, App. Div., First Dept., 264 AD2d 349
The Ryff case sets out some standards that the Appellate Division, First Department, said should be considered in determining if a police officer who has temporarily served as a detective for at least 18 months is entitled to hold that title on a permanent basis without further examination.
Kevin T. Ryff, a New York City Police Department Harbor Unit Vessel Theft Team member, had been recommended for Detective Third Grade status by his commanding officer.
The recommendation reflected the commanding officer’s view that the duties of members of the Vessel Theft Team mirrored the investigative duties of the Detective Bureau investigators in the Auto Crime Division Special Operations Squad. Auto Crime Squad members were promoted to Detective Third Grade after 18 months of service.
New York City’s Administrative Code Section 14-103(b)(2) provides that any person who has received permanent appointment as a police officer and is temporarily assigned to perform the duties of a detective shall, whenever such assignment exceeds eighteen months in duration, be appointed as a detective and receive the compensation ordinarily paid to a detective performing such duties.*
The commissioner, however, rejected the recommendation, indicating that “the 18-month rule does not apply to the Harbor Unit Vessel Theft Team because that unit is not included in the ‘historical career path program’ it has for detective.” Ryff, however, persuaded a State Supreme Court judge to direct the commissioner to designate him a Detective Third Grade retroactive to the date he had completed 18 months of investigative service, with accompanying seniority and benefits. The Supreme Court judge ruled:
1. The commissioner “no longer has discretion to determine whether a particular assignment equals a detective function” and
2. It is the nature of the duties performed and whether they are equivalent to detective functions, not the specific unit in which they are performed, which is determinative” of whether the officer is entitled to be designated Detective Third Grade.
The Appellate Division, however, vacated the lower court’s order. Although the Supreme Court judge concluded that since Ryff “had performed “investigatory duties” for more than 18 months while with the Vessel Theft Team of the Harbor Unit, he was entitled to be designated as a Detective Third Grade with the requisite benefits,” the Appellate Division ruled that such a decision was premature. It said that a hearing was required to resolve two basic issues:
1. Does the scope of Administrative Code Section 14-103(b)(2) rest on the nature of the work performed and, if so,
2. Did Ryff’s work include “investigatory duties”?
Finding that the record was insufficient to determine whether the investigative duties actually performed by Ryff were comparable to those carried out by police officers who received detective status upon completion of 18 months of investigative duties performed in other units, the Appellate Division remanded the matter for a hearing to determine these two critical issues.**
This ruling suggests that such determinations must be made on a “case-by-case” basis and simply relying on the “official job description” will not be viewed by the courts as sufficient.
* New York State Civil Service Law Section 58.4(c), to the extent that it provided that sworn officers of municipal jurisdiction other than the City of New York were to be deemed “permanently appointed” as a detective after having temporarily served as a detective for at least 18 months, was held to violate Article 6, Section 5 [the “merit and fitness” requirement] of the State Constitution [Wood v Irving, 85 NY2d 238, 1995]. Chapter 134 of the Laws of 1997 was adopted in an effort to meet this criticism by the Court of Appeal, wherein the legislature stated “that an individual who performs in an investigatory position in a manner sufficiently satisfactory to the appropriate supervisors to hold such an assignment for a period of eighteen months, has demonstrated fitness for the position of detective or investigator within such police
or sheriffs department at least as sufficiently as could be ascertained by means of a competitive examination.”
** Ryff served as a member of the Police Department’s Harbor Unit’s Vessel Theft Team from April 4, 1995 to February 28, 1997, when he retired.
.NYPPL
AIDS phobia
AIDS phobia
Libasci v Rockville Centre Housing Auth., NYS Supreme Ct., Nassau County, [Not selected for inclusion in the Official Reports]
Libasci and a fellow Rockville Centre sanitation worker, Joseph DeJesus, were removing trash from the Rockville Housing Authority when an insulin needle protruding from a trash bag stuck Libasci.
Libasci was treated at the South Nassau Communities Hospital Emergency Room and given a tetanus shot. Subsequent blood tests were negative for infectious diseases.
On February 18, 1997, Libasci sued for negligence based what State Supreme Court Justice McCaffrey described as “AIDS phobia.”
Justice McCaffrey said that “[I]n order to maintain a cause of action for damages due to the fear of contracting AIDS a rational belief of infection, standing alone, is inadequate. A plaintiff who has not tested seropositive must offer proof of ‘actual exposure’, that is of both a scientifically accepted method of transmission of the virus (in this case a needle puncture) and that the source of the allegedly transmitted blood or fluid was in fact HIV-positive...,” citing Brown v. New York City Health and Hospitals Corporation, 225 AD2d 36.
The court said that summary judgment in favor of the authority was justified because Libasci acknowledged that he “does not know the original owner of the needle or of his or her medical condition” and there was no admissible evidence to demonstrate that the needle was infected.
.
NYPPL
Libasci v Rockville Centre Housing Auth., NYS Supreme Ct., Nassau County, [Not selected for inclusion in the Official Reports]
Libasci and a fellow Rockville Centre sanitation worker, Joseph DeJesus, were removing trash from the Rockville Housing Authority when an insulin needle protruding from a trash bag stuck Libasci.
Libasci was treated at the South Nassau Communities Hospital Emergency Room and given a tetanus shot. Subsequent blood tests were negative for infectious diseases.
On February 18, 1997, Libasci sued for negligence based what State Supreme Court Justice McCaffrey described as “AIDS phobia.”
Justice McCaffrey said that “[I]n order to maintain a cause of action for damages due to the fear of contracting AIDS a rational belief of infection, standing alone, is inadequate. A plaintiff who has not tested seropositive must offer proof of ‘actual exposure’, that is of both a scientifically accepted method of transmission of the virus (in this case a needle puncture) and that the source of the allegedly transmitted blood or fluid was in fact HIV-positive...,” citing Brown v. New York City Health and Hospitals Corporation, 225 AD2d 36.
The court said that summary judgment in favor of the authority was justified because Libasci acknowledged that he “does not know the original owner of the needle or of his or her medical condition” and there was no admissible evidence to demonstrate that the needle was infected.
.
NYPPL
Sep 30, 2010
Co-workers guilty of less egregious policy violations are not "similarly situated" to plaintiff
Co-workers guilty of less egregious policy violations are not "similarly situated" to plaintiff
Source: Kelley Drye & Warren LLP, by Michael E. Rigney, Esq.
Katherine Weber had been employed at Universities Research Association (URA) for almost twenty years when she received a negative performance review. She believed the review was unfair and filed a grievance.
The grievance was ultimately resolved in her favor and the negative review was removed from her record. Weber claims that a number of bad things began to happen to her after the grievance, ultimately including the elimination of her position in early 2004.
She accepted another position with the organization under a new supervisor. Weber had difficulty with her new supervisor from the beginning. She complained that she was the victim of retaliation and that her new supervisor treated her differently than other employees. Her supervisor complained that she was not getting her work completed and became suspicious of her computer usage. URA decided to monitor her Internet usage.
The results of its trace showed that Weber spent more than 16 hours in one workweek visiting websites unrelated to her work. Her usage included accessing dog-related sites and her personal e-mail accounts in connection with her dog training business.
URA terminated Weber's employment for violating its policies: a) requiring disclosure and authorization of outside employment and b) prohibiting the use of URA computer equipment in connection with outside employment. Weber brought suit pursuant to Title VII for gender discrimination and retaliation. Judge Andersen (N.D. Ill.) granted summary judgment to URA. Weber appeals.
In their opinion Judges Bauer, Kanne, and Tinder affirmed. The Court first concluded that Weber waived both claims under the direct method of proof by not sufficiently developing them in the district court. Since Weber does not challenge the district court's decision with respect to the retaliation claim under the indirect method, the only other issue before the Court was the discrimination claim under the indirect method. Weber attempted to meet the "similarly situated" element of her prima facie case by identifying a number of male co-workers who had unauthorized outside employment, who accessed the Internet for personal and outside employment use, and who accessed the Internet to view pornography.
The Court concluded that Weber did not meet the "similarly situated" element. To meet that requirement, she must identify employees who engaged in similar conduct in the absence of circumstances that would distinguish their conduct from hers.
The Court acknowledged that she identified multiple instances of policy violations but distinguished those violators. Weber presented no evidence that the violators had trouble finishing their work or that any of them violated a company policy "with the same reckless abandon" as Weber.
Weber v Universities Research Association (September 2, 2010). The full text of this 7th Circuit ruling is posted on the Internet at: http://www.intheiropinion.com/uploads/file/weber.pdf
.
Source: Kelley Drye & Warren LLP, by Michael E. Rigney, Esq.
Katherine Weber had been employed at Universities Research Association (URA) for almost twenty years when she received a negative performance review. She believed the review was unfair and filed a grievance.
The grievance was ultimately resolved in her favor and the negative review was removed from her record. Weber claims that a number of bad things began to happen to her after the grievance, ultimately including the elimination of her position in early 2004.
She accepted another position with the organization under a new supervisor. Weber had difficulty with her new supervisor from the beginning. She complained that she was the victim of retaliation and that her new supervisor treated her differently than other employees. Her supervisor complained that she was not getting her work completed and became suspicious of her computer usage. URA decided to monitor her Internet usage.
The results of its trace showed that Weber spent more than 16 hours in one workweek visiting websites unrelated to her work. Her usage included accessing dog-related sites and her personal e-mail accounts in connection with her dog training business.
URA terminated Weber's employment for violating its policies: a) requiring disclosure and authorization of outside employment and b) prohibiting the use of URA computer equipment in connection with outside employment. Weber brought suit pursuant to Title VII for gender discrimination and retaliation. Judge Andersen (N.D. Ill.) granted summary judgment to URA. Weber appeals.
In their opinion Judges Bauer, Kanne, and Tinder affirmed. The Court first concluded that Weber waived both claims under the direct method of proof by not sufficiently developing them in the district court. Since Weber does not challenge the district court's decision with respect to the retaliation claim under the indirect method, the only other issue before the Court was the discrimination claim under the indirect method. Weber attempted to meet the "similarly situated" element of her prima facie case by identifying a number of male co-workers who had unauthorized outside employment, who accessed the Internet for personal and outside employment use, and who accessed the Internet to view pornography.
The Court concluded that Weber did not meet the "similarly situated" element. To meet that requirement, she must identify employees who engaged in similar conduct in the absence of circumstances that would distinguish their conduct from hers.
The Court acknowledged that she identified multiple instances of policy violations but distinguished those violators. Weber presented no evidence that the violators had trouble finishing their work or that any of them violated a company policy "with the same reckless abandon" as Weber.
Weber v Universities Research Association (September 2, 2010). The full text of this 7th Circuit ruling is posted on the Internet at: http://www.intheiropinion.com/uploads/file/weber.pdf
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Determining if there is a basis for disciplinary charges
Determining if there is a basis for disciplinary charges
Waters v Fire Commissioners, Supreme Court, [Not selected for publication in the Official Reports]
The Waters case concerned a rather rare issue: whether or not the activities underlying disciplinary action provide any basis for bring disciplinary action against an individual.
As State Supreme Court Justice Lockman saw it, “[t]he issue to be resolved is not whether Captain Michael Waters, a decorated volunteer firefighter, performed the underlying acts alleged, but whether those acts constitute a violation of the by-law of the Massapequa Fire District with which he has been charged.”
On January 18, 1999, Waters telephoned other fire captains concerning a new driving policy that was of concern to the membership of the fire company. Fire Department Chief Michael Gange was very interested in this issue. However, instead of telling Waters that he wanted to be present at any discussion of the driving policy, Gange suspended him for making the calls after the two had “exchanged words.”*
Subsequently Chief Gange advised the Fire Commissioners that Waters “has been” relieved of duty, as he “admitted ... that he attempted to call a meeting of the officers ... without checking with or scheduling it through the Chiefs office.”
Ultimately Waters was served with disciplinary charges alleging that he violated department by-law Section 3.1(a), which, in relevant part, provide that “[t]he Chief shall be chairman of the meetings of the Department....” Found guilty of the charges, Waters was suspended for sixty days.
The court found this determination troubling. In addition to noting a number of significant procedural errors that constituted a denial of due process, Justice Lockman said that there was no evidence of any “meeting of the department”. Commenting that “there was no evidence of any meeting at all, departmental or otherwise, and no allegation that a meeting was ever held,” the court noted that the disciplinary decision itself merely states that “Captain Michael Waters’ acts constituted an attempt to schedule a meeting.”
As the evidence shows that the only act Waters took, and the only act which is supported in the record, was to place telephone calls to the district’s several firehouses to request that the officers present come over and discuss driver policy, Justice Lockman concluded that “there is no evidence, substantial or otherwise, to support the charge that Waters violated the by-law which states that the Chief shall chair department meetings.” The court annulled the disciplinary determination.
In such situations, courts would usually remand the matter back to the agency for a new hearing. Here, however, Justice Lockman said that there were multiple procedural irregularities which, when taken together, present a due process violation, as well as a “record utterly lacking in evidence of a violation of the by-laws.” Accordingly, the court elected to rescind the disciplinary action rather that return it for further proceedings.
* Chief Gange testified “I contacted Captain Waters on Tuesday, January 19. I asked him if he was calling an officers meeting. He said yes, he was. I said ‘Without my knowledge?’ He goes, ‘That’s correct’. I asked him if he was looking for a suspension of time. He said, ‘Do whatever you have to do’ and I said ‘You’re relieved of duty.”
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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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Waters v Fire Commissioners, Supreme Court, [Not selected for publication in the Official Reports]
The Waters case concerned a rather rare issue: whether or not the activities underlying disciplinary action provide any basis for bring disciplinary action against an individual.
As State Supreme Court Justice Lockman saw it, “[t]he issue to be resolved is not whether Captain Michael Waters, a decorated volunteer firefighter, performed the underlying acts alleged, but whether those acts constitute a violation of the by-law of the Massapequa Fire District with which he has been charged.”
On January 18, 1999, Waters telephoned other fire captains concerning a new driving policy that was of concern to the membership of the fire company. Fire Department Chief Michael Gange was very interested in this issue. However, instead of telling Waters that he wanted to be present at any discussion of the driving policy, Gange suspended him for making the calls after the two had “exchanged words.”*
Subsequently Chief Gange advised the Fire Commissioners that Waters “has been” relieved of duty, as he “admitted ... that he attempted to call a meeting of the officers ... without checking with or scheduling it through the Chiefs office.”
Ultimately Waters was served with disciplinary charges alleging that he violated department by-law Section 3.1(a), which, in relevant part, provide that “[t]he Chief shall be chairman of the meetings of the Department....” Found guilty of the charges, Waters was suspended for sixty days.
The court found this determination troubling. In addition to noting a number of significant procedural errors that constituted a denial of due process, Justice Lockman said that there was no evidence of any “meeting of the department”. Commenting that “there was no evidence of any meeting at all, departmental or otherwise, and no allegation that a meeting was ever held,” the court noted that the disciplinary decision itself merely states that “Captain Michael Waters’ acts constituted an attempt to schedule a meeting.”
As the evidence shows that the only act Waters took, and the only act which is supported in the record, was to place telephone calls to the district’s several firehouses to request that the officers present come over and discuss driver policy, Justice Lockman concluded that “there is no evidence, substantial or otherwise, to support the charge that Waters violated the by-law which states that the Chief shall chair department meetings.” The court annulled the disciplinary determination.
In such situations, courts would usually remand the matter back to the agency for a new hearing. Here, however, Justice Lockman said that there were multiple procedural irregularities which, when taken together, present a due process violation, as well as a “record utterly lacking in evidence of a violation of the by-laws.” Accordingly, the court elected to rescind the disciplinary action rather that return it for further proceedings.
* Chief Gange testified “I contacted Captain Waters on Tuesday, January 19. I asked him if he was calling an officers meeting. He said yes, he was. I said ‘Without my knowledge?’ He goes, ‘That’s correct’. I asked him if he was looking for a suspension of time. He said, ‘Do whatever you have to do’ and I said ‘You’re relieved of duty.”
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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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Equal pay for jobs the performance of which requires equal skill, effort, and responsibility
Equal pay for jobs the performance of which requires equal skill, effort, and responsibility
Belfi v Long Island Railroad, 2nd Cir., 191 F.3d 129
The Equal Pay Act [EPA] prohibits employers from discriminating among employees on the basis of gender by paying higher wages to employees of the opposite sex for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions [29 USC. Section 206(d)(1)].” Title VII bars discrimination on the basis of gender.
The Second Circuit U.S. Court of Appeals in New York commenced its review of Susan Belfi’s appeal of the summary dismissal of her Title VII and EPA complaints by a federal district court judge by commenting:
On this appeal we deal with an employer long on salary policies, but short on reasons justifying their application to a female employee whose salary for the same work was less than those of her male peers.
Belfi, originally employed by the Long Island Railroad [LIRR] in 1973 as a steno-typist, was promoted to the position of Office Engineer-Communications on a temporary basis in November 1989. Her salary: the minimum salary for that position, $39,508. On January 1, 1990 the minimum salary was increased to $40,691 but Belfi’s salary was not adjusted to this new, higher “minimum salary” rate.
On July 16, 1990, Belfi was permanently appointed Office Engineer-Signal in the Signal Department at $40,691 per year while the salaries of her two male peers -- the Office Engineer-Communications and the Office Engineer-Electric Traction -- were set at $52,794 and $53,046 respectively.*
By 1993, Belfi’s salary was increased to $44,857 while one co-worker’s salary was increased to $57,240. The other co-worker’s salary was not increased “because of his anticipated retirement.” On June 15, 1994, LIRR hired Gary Barnett to replace the retired Office Engineer-Electric Traction at a salary of $51,249, $6,000 more than Belfi’s salary and $8,931 more than the minimum for the position.
Belfi became aware of the salary differences in October 1992 and filed a number of grievances. LIRR offered a number of reasons to explain away these salary disparities, including:
1. The “time spent in the position by each of the incumbents” was the reason for the differences.
2. The 1986 transition of the office engineer positions to the Salary Plan, caused the disparity.
3. It was necessary to pay Barnett $51,249 to induce him to accept the position because “[i]n order to attract union employees to management, LIRR has found it necessary to consider W-2 earnings, which include overtime, in applying the ten percent (10%) promotional increase in accordance with its policy.”
Eventually LIRR consented to bringing Belfi’s salary up to Barnett’s retroactive to January 1, 1995. Still, Belfi’s salary from June 15, 1994 through December 31, 1994 was significantly less than Barnett’s.
The Circuit Court of Appeals emphasized that the EPA does not require the complainant to prove that the employer intended to discriminate in order to prevail.
Accordingly, a prima facie showing of the salary disparities was based on gender gives rise to a presumption of discrimination. If the plaintiff makes out a prima facie case under the EPA, the burden of persuasion shifts to the employer to show that the wage disparity is justified by one or more of the affirmative defenses allowed under the Act:
1. a seniority system;
2. a merit system;
3. a system which measures earnings by quantity or quality of production; or
4. a differential based on any other factor other than sex and that there is a legitimate business reason for implementing the gender-neutral factor that brought about the wage differential.
Once the employer offers one or more of these “affirmative defenses,” the burden of going forward shifts back to the employee, who must show that the reason given by the employer is, in fact, a pretext for unlawful discrimination in order to prevail.
The Circuit Court rejected LIRR’s combination of two affirmative defenses: seniority and factors other than sex, as justification for the differential between the salaries of Belfi and her male counterparts. Rather, it said, it was persuaded that these justifications were a pretext, as the evidence showed that its salary plan allows for an inequity increase under two circumstances:
1. where the employee’s salary is low in comparison with peers as a result of restructuring, reorganization, or job consolidation; or
2. where the promotion of a represented employee to a management position may have resulted in his or her earning a salary greater than that of a seasoned incumbent.
Accordingly, the Circuit Court concluded, there exist genuine issues of material fact regarding pretext sufficient to preclude the summary dismissal of Belfi’s EPA claims. It returned the case to the lower court for its further consideration of these claims.
The Circuit Court, however, affirmed the lower court’s summarily dismissing Belfi’s Title VII complaint.
* The salary range for these three “Office Engineer” positions was determined using the “Hay Method.” The Hay Method assigns a “point value” to a position based on the skills and talents needed to perform the job. A minimum, midpoint, and maximum salary for the position is then set. The decision notes that three positions had the same “Hay point value.”
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Belfi v Long Island Railroad, 2nd Cir., 191 F.3d 129
The Equal Pay Act [EPA] prohibits employers from discriminating among employees on the basis of gender by paying higher wages to employees of the opposite sex for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions [29 USC. Section 206(d)(1)].” Title VII bars discrimination on the basis of gender.
The Second Circuit U.S. Court of Appeals in New York commenced its review of Susan Belfi’s appeal of the summary dismissal of her Title VII and EPA complaints by a federal district court judge by commenting:
On this appeal we deal with an employer long on salary policies, but short on reasons justifying their application to a female employee whose salary for the same work was less than those of her male peers.
Belfi, originally employed by the Long Island Railroad [LIRR] in 1973 as a steno-typist, was promoted to the position of Office Engineer-Communications on a temporary basis in November 1989. Her salary: the minimum salary for that position, $39,508. On January 1, 1990 the minimum salary was increased to $40,691 but Belfi’s salary was not adjusted to this new, higher “minimum salary” rate.
On July 16, 1990, Belfi was permanently appointed Office Engineer-Signal in the Signal Department at $40,691 per year while the salaries of her two male peers -- the Office Engineer-Communications and the Office Engineer-Electric Traction -- were set at $52,794 and $53,046 respectively.*
By 1993, Belfi’s salary was increased to $44,857 while one co-worker’s salary was increased to $57,240. The other co-worker’s salary was not increased “because of his anticipated retirement.” On June 15, 1994, LIRR hired Gary Barnett to replace the retired Office Engineer-Electric Traction at a salary of $51,249, $6,000 more than Belfi’s salary and $8,931 more than the minimum for the position.
Belfi became aware of the salary differences in October 1992 and filed a number of grievances. LIRR offered a number of reasons to explain away these salary disparities, including:
1. The “time spent in the position by each of the incumbents” was the reason for the differences.
2. The 1986 transition of the office engineer positions to the Salary Plan, caused the disparity.
3. It was necessary to pay Barnett $51,249 to induce him to accept the position because “[i]n order to attract union employees to management, LIRR has found it necessary to consider W-2 earnings, which include overtime, in applying the ten percent (10%) promotional increase in accordance with its policy.”
Eventually LIRR consented to bringing Belfi’s salary up to Barnett’s retroactive to January 1, 1995. Still, Belfi’s salary from June 15, 1994 through December 31, 1994 was significantly less than Barnett’s.
The Circuit Court of Appeals emphasized that the EPA does not require the complainant to prove that the employer intended to discriminate in order to prevail.
Accordingly, a prima facie showing of the salary disparities was based on gender gives rise to a presumption of discrimination. If the plaintiff makes out a prima facie case under the EPA, the burden of persuasion shifts to the employer to show that the wage disparity is justified by one or more of the affirmative defenses allowed under the Act:
1. a seniority system;
2. a merit system;
3. a system which measures earnings by quantity or quality of production; or
4. a differential based on any other factor other than sex and that there is a legitimate business reason for implementing the gender-neutral factor that brought about the wage differential.
Once the employer offers one or more of these “affirmative defenses,” the burden of going forward shifts back to the employee, who must show that the reason given by the employer is, in fact, a pretext for unlawful discrimination in order to prevail.
The Circuit Court rejected LIRR’s combination of two affirmative defenses: seniority and factors other than sex, as justification for the differential between the salaries of Belfi and her male counterparts. Rather, it said, it was persuaded that these justifications were a pretext, as the evidence showed that its salary plan allows for an inequity increase under two circumstances:
1. where the employee’s salary is low in comparison with peers as a result of restructuring, reorganization, or job consolidation; or
2. where the promotion of a represented employee to a management position may have resulted in his or her earning a salary greater than that of a seasoned incumbent.
Accordingly, the Circuit Court concluded, there exist genuine issues of material fact regarding pretext sufficient to preclude the summary dismissal of Belfi’s EPA claims. It returned the case to the lower court for its further consideration of these claims.
The Circuit Court, however, affirmed the lower court’s summarily dismissing Belfi’s Title VII complaint.
* The salary range for these three “Office Engineer” positions was determined using the “Hay Method.” The Hay Method assigns a “point value” to a position based on the skills and talents needed to perform the job. A minimum, midpoint, and maximum salary for the position is then set. The decision notes that three positions had the same “Hay point value.”
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Filing for accidental disability retirement
Filing for accidental disability retirement
Sukup v McCall, App. Div., Third Dept., 264 AD2d 921
The Sukup case illustrates the importance of filing a timely application for accidental disability retirement benefits. Simply put, if the individual, or his or her representative, fails to file the application in time, the application for such benefits will be rejected. However, critical to such a determination is that the applicant knew that he or she was actually terminated from employment.
Broome County landfill employee Richard Sukup sustained a work-related accident in June 1994. Placed on Workers’ Compensation Leave pursuant to Section 71 of the Civil Service Law, the County terminated his employment after a three-month extension of his one-year leave of absence expired on September 24, 1995.*
In February 1997, Sukup filed for accidental disability retirement benefits. His application was rejected as untimely.
Sukup, however, denied receiving any notice that his employment had been terminated or that his leave had expired. As the Appellate Division pointed out, there was no direct evidence that the County notified him of the termination of his employment.
Clearly, Retirement and Social Security Law Section 605(b)(2) provides that an application for disability retirement benefits must be submitted within 12 months after an employee is advised that his or her employment status had been terminated.
The Comptroller concluded that the two identical letters concerning COBRA benefits that the County sent to Sukup in 1995 indicating that his employment was placed on “non-payroll status” effective June 24, 1994 constituted notice “of the termination of his employment no later than October 1, 1995.”**
However, a notice of “non-payroll status” could simply mean that the individual has been placed on “leave without pay” rather than he or she is “terminated.”
In this instance the Appellate Division concluded there was significant confusion as to whether Sukup received any notice that his employment had been terminated. For example, although the COBRA application form relied upon by the Comptroller lists a number of possible reasons for a change of enrollment, including termination, none of the boxes is checked and no “reason” was indicated on the form.
Also, although the “Employee Final Clearance Form,” which is to be completed upon an employee’s separation from employment, signed by Sukup was date-stamped “September 25, 1995,” it was apparently actually signed by Sukup and five other County employees, including Sukup’s supervisor, on either August 16 or August 19, 1996.
Because of “the ambiguity, confusion and uncertainty created by the notices to Sukup advising him that he had been placed on “non-payroll status” and, more importantly, the “Employee Final Clearance Form” dated in August 1996, the court deemed Sukup’s February 1997 application for disability retirement was timely.
This ruling demonstrates the importance of the employer making certain that an individual on leave without pay is given complete and accurate information concerning his or her status as an employee.
* For the purposes of Section 71, an employee may be terminated after being absent on workers’ compensation leave for a cumulative period of one year. In Duncan v NYS Developmental Center, 63 NY2d 128, the Court of Appeals specifically considered “termination” under Section 71 and ruled that it was permitted.
** COBRA requires that employees who are covered by an employment-related health care plan are to be given the opportunity to elect continuation of such coverage after some qualifying event, including termination of employment [29 USC Section 1161].
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Sukup v McCall, App. Div., Third Dept., 264 AD2d 921
The Sukup case illustrates the importance of filing a timely application for accidental disability retirement benefits. Simply put, if the individual, or his or her representative, fails to file the application in time, the application for such benefits will be rejected. However, critical to such a determination is that the applicant knew that he or she was actually terminated from employment.
Broome County landfill employee Richard Sukup sustained a work-related accident in June 1994. Placed on Workers’ Compensation Leave pursuant to Section 71 of the Civil Service Law, the County terminated his employment after a three-month extension of his one-year leave of absence expired on September 24, 1995.*
In February 1997, Sukup filed for accidental disability retirement benefits. His application was rejected as untimely.
Sukup, however, denied receiving any notice that his employment had been terminated or that his leave had expired. As the Appellate Division pointed out, there was no direct evidence that the County notified him of the termination of his employment.
Clearly, Retirement and Social Security Law Section 605(b)(2) provides that an application for disability retirement benefits must be submitted within 12 months after an employee is advised that his or her employment status had been terminated.
The Comptroller concluded that the two identical letters concerning COBRA benefits that the County sent to Sukup in 1995 indicating that his employment was placed on “non-payroll status” effective June 24, 1994 constituted notice “of the termination of his employment no later than October 1, 1995.”**
However, a notice of “non-payroll status” could simply mean that the individual has been placed on “leave without pay” rather than he or she is “terminated.”
In this instance the Appellate Division concluded there was significant confusion as to whether Sukup received any notice that his employment had been terminated. For example, although the COBRA application form relied upon by the Comptroller lists a number of possible reasons for a change of enrollment, including termination, none of the boxes is checked and no “reason” was indicated on the form.
Also, although the “Employee Final Clearance Form,” which is to be completed upon an employee’s separation from employment, signed by Sukup was date-stamped “September 25, 1995,” it was apparently actually signed by Sukup and five other County employees, including Sukup’s supervisor, on either August 16 or August 19, 1996.
Because of “the ambiguity, confusion and uncertainty created by the notices to Sukup advising him that he had been placed on “non-payroll status” and, more importantly, the “Employee Final Clearance Form” dated in August 1996, the court deemed Sukup’s February 1997 application for disability retirement was timely.
This ruling demonstrates the importance of the employer making certain that an individual on leave without pay is given complete and accurate information concerning his or her status as an employee.
* For the purposes of Section 71, an employee may be terminated after being absent on workers’ compensation leave for a cumulative period of one year. In Duncan v NYS Developmental Center, 63 NY2d 128, the Court of Appeals specifically considered “termination” under Section 71 and ruled that it was permitted.
** COBRA requires that employees who are covered by an employment-related health care plan are to be given the opportunity to elect continuation of such coverage after some qualifying event, including termination of employment [29 USC Section 1161].
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Past practices and the Taylor Law
Past practices and the Taylor Law
Walden PBA v PERB, 263 AD2d 885
The Walden PBA filed an improper practice charge with PERB claiming that the Village of Walden had failed to negotiate in good faith in violation of Section 209-a(1)(d) of the Civil Service Law.
The PBA said that the Walden “unilaterally discontinued certain fringe benefits previously provided to police officers that were on General Municipal Law Section 207-c leave due to injury or illness incurred in the performance of their duties.” It was conceded that the “terminated benefits had previously been provided by the village pursuant to a long-standing past practice.”
The village argued that the “PBA had contractually waived the requirement of collective bargaining as to all past practices,” including the terminated benefits. Walden pointed to what the Appellate Division characterized as the “following unqualified language” in support of its position: “All past practices may be continued at the Village’s discretion.”
Reversing its Administrative Law Judge’s ruling, PERB concluded that the PBA had waived the Village’s obligation to negotiate changes in past practices. As a result, the PBA filed an Article 78 proceeding seeking to annul PERB’s determination.
Although a State Supreme Court justice overturned PERB’s determination, finding that it was not reasonable or rational, the Appellate Division reversed, holding that PERB’s determination represents a rational, supportable interpretation of the parties’ collective bargaining agreement.
In sustaining PERB’s ruling, the Appellate Division pointed out the following key elements:
1. A public employer commits an improper practice by unilaterally changing noncontractual practices concerning existing terms and conditions of employment.
2. An employee organization may release a public employer of its statutory duty to negotiate changes in mandatorily negotiable past practices.
3. A bargained-for waiver satisfies the employer’s bargaining obligation under the Taylor Law.
According to the decision, the parties themselves agreed that the PBA effected a collective bargaining waiver. The dispute centered on the question of whether “PBA waived the Village’s obligation to negotiate changes in ‘[a]ll past practices’” -- the village’s position, ... or “merely waived all past practices pertaining to grievance procedures” -- the PBA position.
The Appellate Division said that “this dispute poses questions involving the interpretation of a collective bargaining agreement which are within PERB’s area of expertise.” Accordingly, PERB’s interpretation is entitled to substantial deference and should be upheld if it is rational, reasonable, legally permissible and is supported by the text of the agreement.
Finding that PERB’s ruling satisfied all three tests, the court upheld PERB’s interpretation of the collective bargaining agreement, commenting that the Board's interpretation was neither arbitrary nor capricious.
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Walden PBA v PERB, 263 AD2d 885
The Walden PBA filed an improper practice charge with PERB claiming that the Village of Walden had failed to negotiate in good faith in violation of Section 209-a(1)(d) of the Civil Service Law.
The PBA said that the Walden “unilaterally discontinued certain fringe benefits previously provided to police officers that were on General Municipal Law Section 207-c leave due to injury or illness incurred in the performance of their duties.” It was conceded that the “terminated benefits had previously been provided by the village pursuant to a long-standing past practice.”
The village argued that the “PBA had contractually waived the requirement of collective bargaining as to all past practices,” including the terminated benefits. Walden pointed to what the Appellate Division characterized as the “following unqualified language” in support of its position: “All past practices may be continued at the Village’s discretion.”
Reversing its Administrative Law Judge’s ruling, PERB concluded that the PBA had waived the Village’s obligation to negotiate changes in past practices. As a result, the PBA filed an Article 78 proceeding seeking to annul PERB’s determination.
Although a State Supreme Court justice overturned PERB’s determination, finding that it was not reasonable or rational, the Appellate Division reversed, holding that PERB’s determination represents a rational, supportable interpretation of the parties’ collective bargaining agreement.
In sustaining PERB’s ruling, the Appellate Division pointed out the following key elements:
1. A public employer commits an improper practice by unilaterally changing noncontractual practices concerning existing terms and conditions of employment.
2. An employee organization may release a public employer of its statutory duty to negotiate changes in mandatorily negotiable past practices.
3. A bargained-for waiver satisfies the employer’s bargaining obligation under the Taylor Law.
According to the decision, the parties themselves agreed that the PBA effected a collective bargaining waiver. The dispute centered on the question of whether “PBA waived the Village’s obligation to negotiate changes in ‘[a]ll past practices’” -- the village’s position, ... or “merely waived all past practices pertaining to grievance procedures” -- the PBA position.
The Appellate Division said that “this dispute poses questions involving the interpretation of a collective bargaining agreement which are within PERB’s area of expertise.” Accordingly, PERB’s interpretation is entitled to substantial deference and should be upheld if it is rational, reasonable, legally permissible and is supported by the text of the agreement.
Finding that PERB’s ruling satisfied all three tests, the court upheld PERB’s interpretation of the collective bargaining agreement, commenting that the Board's interpretation was neither arbitrary nor capricious.
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Court approves county personnel officer’s payroll decertification of individuals not employed in accordance with the Civil Service Law
Court approves county personnel officer’s payroll decertification of individuals not employed in accordance with the Civil Service Law
North Greenbush v Director of Personnel, Supreme Court, [Not selected for publication in the Official Reports]
Section 100 of the Civil Service Law requires the responsible civil service commission to periodically certify the payroll of all of the public entities under its jurisdiction.
The responsible commission is required to examine the agency’s payroll at least once each year “to determine that all persons employed in such department, agency or authority are employed in accordance with law.” Section 101 of the Civil Service Law makes it a misdemeanor to pay an individual whom the responsible commission has refused to certify on the payroll.
On May 24, 1999, Rensselaer County Bureau of Personnel Director Christian K. Mahoney wrote to the Town of North Greenbush setting “52 conditions” that the Town had to meet in order for its payroll to be certified. The Town complied with 45 of these conditions. It, however, challenged Mahoney’s determination that seven police officers employed by the Town were not eligible to remain on the payroll.
According to Justice James B. Canfield’s decision, “these issues [involving the police officers] have been simmering for years in some cases.” He noted that North Greenbush and the affected police officers “merely ignored them” until the May 24, 1999 letter rather than “promptly challenge them administratively.”
Essentially, said the court, North Greenbush “failed to demonstrate that it was in compliance [with the Civil Service Law] or that either it or the officers pursued their administrative remedies prior to May 24, 1999.”
Ruling that North Greenbush failed to meet it burden of proving that Mahoney’s efforts “to enforce the civil service law by refusing to certify the payroll at this time is arbitrary, capricious or illegal,” Justice Canfield dismissed its petition.
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North Greenbush v Director of Personnel, Supreme Court, [Not selected for publication in the Official Reports]
Section 100 of the Civil Service Law requires the responsible civil service commission to periodically certify the payroll of all of the public entities under its jurisdiction.
The responsible commission is required to examine the agency’s payroll at least once each year “to determine that all persons employed in such department, agency or authority are employed in accordance with law.” Section 101 of the Civil Service Law makes it a misdemeanor to pay an individual whom the responsible commission has refused to certify on the payroll.
On May 24, 1999, Rensselaer County Bureau of Personnel Director Christian K. Mahoney wrote to the Town of North Greenbush setting “52 conditions” that the Town had to meet in order for its payroll to be certified. The Town complied with 45 of these conditions. It, however, challenged Mahoney’s determination that seven police officers employed by the Town were not eligible to remain on the payroll.
According to Justice James B. Canfield’s decision, “these issues [involving the police officers] have been simmering for years in some cases.” He noted that North Greenbush and the affected police officers “merely ignored them” until the May 24, 1999 letter rather than “promptly challenge them administratively.”
Essentially, said the court, North Greenbush “failed to demonstrate that it was in compliance [with the Civil Service Law] or that either it or the officers pursued their administrative remedies prior to May 24, 1999.”
Ruling that North Greenbush failed to meet it burden of proving that Mahoney’s efforts “to enforce the civil service law by refusing to certify the payroll at this time is arbitrary, capricious or illegal,” Justice Canfield dismissed its petition.
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Sep 29, 2010
Appointing authority has discretion to reject a former employee's request seeking reinstatement to his or her former position
Appointing authority has discretion to reject a former employee's request seeking reinstatement to his or her former position
Silberzweig v Doherty, 2010 NY Slip Op 06709, Decided on September 28, 2010, Appellate Division, First Department
Matthew Silberzweig, a sanitation worker with the New York City Department of Sanitation [DOS] was terminated after he had failed to contact DOS concerning his being absent from work without approval. The reason for the absence: Silberzweig had been arrested.
After he had been acquitted of the charges filed against him, Silberzweig asked DOS to reinstate him to his former position. When DOS denied his request, Silberzweig sued and won a Supreme Court order vacating and annulling the Commissioner’s decision rejecting his application for reinstatement.
The Appellate Division unanimously reversed the lower court’s ruling “on the law.”
The court said that considering Silberzweig’s “prior disciplinary record and his poor performance review,” the Commissioner’s denial of Silberzweig's request for reinstatement after the criminal charges against him were dismissed "was rational, lawful and a provident exercise of discretion.”
Further, said the Appellate Division, the record did not conclusively establish that DOS had a policy of automatically reinstating former employees who were acquitted of all criminal charges against them.
Significantly, the court noted that under Personnel Rules and Regulations of the City of New York Department of Citywide Administrative Services an agency head has the discretion to determine whether or not to reinstate a person who was dismissed from a permanent competitive position in the agency and “nothing in Civil Service Law §75 or the Administrative Code of the City of New York § 16-106 says otherwise.”
The Appellate Division also noted that Supreme Court “improperly relied on an Unemployment Insurance Appeal Board [UIAB] finding, since the finding was not part of the administrative record but was simply attached [Silberzweig’s] reply memorandum of law in this Article 78 proceeding."
Further, said the court, a finding by the UIAB “lacks preclusive effect in a subsequent action or proceeding,” citing Labor Law §623[2] and Matter of Strong v New York City Dept. of Educ., 62 AD3d 592 [2009], leave to appeal denied 14 NY3d 704.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06709.htm
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Silberzweig v Doherty, 2010 NY Slip Op 06709, Decided on September 28, 2010, Appellate Division, First Department
Matthew Silberzweig, a sanitation worker with the New York City Department of Sanitation [DOS] was terminated after he had failed to contact DOS concerning his being absent from work without approval. The reason for the absence: Silberzweig had been arrested.
After he had been acquitted of the charges filed against him, Silberzweig asked DOS to reinstate him to his former position. When DOS denied his request, Silberzweig sued and won a Supreme Court order vacating and annulling the Commissioner’s decision rejecting his application for reinstatement.
The Appellate Division unanimously reversed the lower court’s ruling “on the law.”
The court said that considering Silberzweig’s “prior disciplinary record and his poor performance review,” the Commissioner’s denial of Silberzweig's request for reinstatement after the criminal charges against him were dismissed "was rational, lawful and a provident exercise of discretion.”
Further, said the Appellate Division, the record did not conclusively establish that DOS had a policy of automatically reinstating former employees who were acquitted of all criminal charges against them.
Significantly, the court noted that under Personnel Rules and Regulations of the City of New York Department of Citywide Administrative Services an agency head has the discretion to determine whether or not to reinstate a person who was dismissed from a permanent competitive position in the agency and “nothing in Civil Service Law §75 or the Administrative Code of the City of New York § 16-106 says otherwise.”
The Appellate Division also noted that Supreme Court “improperly relied on an Unemployment Insurance Appeal Board [UIAB] finding, since the finding was not part of the administrative record but was simply attached [Silberzweig’s] reply memorandum of law in this Article 78 proceeding."
Further, said the court, a finding by the UIAB “lacks preclusive effect in a subsequent action or proceeding,” citing Labor Law §623[2] and Matter of Strong v New York City Dept. of Educ., 62 AD3d 592 [2009], leave to appeal denied 14 NY3d 704.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06709.htm
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The doctrine of res judicata held to bar litigation of employee’s challenge to termination in federal court follow dismissal of State lawsuit
The doctrine of res judicata held to bar litigation of employee’s challenge to termination in federal court follow dismissal of State lawsuit
Sheffield v Sheriff of the Rockland County Sheriffs Department, 08-0840-cv (2nd Cir. 9-22-2010)
Malinda Sheffield was terminated from her employment following a disciplinary proceeding in which the arbitrator found that Sheffield had filed a false workers’ compensation claim and recommended her dismissal.
Sheffield than filed a lawsuit in State Supreme Court alleging that the disciplinary action taken against her was “retaliatory.” She also alleged that the action constituted libel and violated her rights under Title VII. The court dismissed her petition in its entirety.
Prior to the Supreme Court’s issuing its decision, Sheffield filed a similar lawsuit in federal district court.
Following the dismissal of Sheffield’s petition by the federal district court, Sheffield filed an appeal with the Circuit Court of Appeals, contending that neither the doctrine of res judicata nor collateral estoppel applied with respect to her federal action.
The Circuit Court, applying New York State law, said that in New York “res judicata … bars successive litigation [of all claims] based upon the same transactions or series of connected transactions… if (1) there is a judgment on the merits … by a court of competent jurisdiction and (ii) the party against whom the doctrine is invoked was a party to the previous action….”
Considering the events underlying Sheffield’s federal action, the Circuit Court affirmed the district court’s dismissal of her complaint on the ground of res judicata and thus found it unnecessary to consider whether the doctrine of collateral estoppel would also bar her litigating her federal claims.
The Circuit Court’s decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/c3b4afe8-5513-4998-88f3-9a6beb0bc6d3/13/doc/08-0840_so.pdf
Sheffield v Sheriff of the Rockland County Sheriffs Department, 08-0840-cv (2nd Cir. 9-22-2010)
Malinda Sheffield was terminated from her employment following a disciplinary proceeding in which the arbitrator found that Sheffield had filed a false workers’ compensation claim and recommended her dismissal.
Sheffield than filed a lawsuit in State Supreme Court alleging that the disciplinary action taken against her was “retaliatory.” She also alleged that the action constituted libel and violated her rights under Title VII. The court dismissed her petition in its entirety.
Prior to the Supreme Court’s issuing its decision, Sheffield filed a similar lawsuit in federal district court.
Following the dismissal of Sheffield’s petition by the federal district court, Sheffield filed an appeal with the Circuit Court of Appeals, contending that neither the doctrine of res judicata nor collateral estoppel applied with respect to her federal action.
The Circuit Court, applying New York State law, said that in New York “res judicata … bars successive litigation [of all claims] based upon the same transactions or series of connected transactions… if (1) there is a judgment on the merits … by a court of competent jurisdiction and (ii) the party against whom the doctrine is invoked was a party to the previous action….”
Considering the events underlying Sheffield’s federal action, the Circuit Court affirmed the district court’s dismissal of her complaint on the ground of res judicata and thus found it unnecessary to consider whether the doctrine of collateral estoppel would also bar her litigating her federal claims.
The Circuit Court’s decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/c3b4afe8-5513-4998-88f3-9a6beb0bc6d3/13/doc/08-0840_so.pdf
IRS private letter ruling advises university’s that its tuition reduction plan available certain employees and their dependents is non-discriminatory
Tuition reduction plans
There may be State Constitution issues to be considered and resolved with respect to providing such a benefit to staff members of public universities and colleges in the SUNY system and their dependents. For example, would granting such a type of benefit constitute an unconstitutional gift of public monies within the meaning of Article VII, §8 of the State Constitution?
Article VII, §8.1, in pertinent part, provides: “The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking, but the foregoing provisions shall not apply to any fund or property now held or which may hereafter be held by the state for educational, mental health or mental retardation purposes.”
New York State courts have ruled on a number of cases involving claims that the challenged action constituted an unconstitutional gift of public monies or property including:
1. Gagliardo v Dinkins, 89 N.Y.2d 62. Here the Court of Appeals said that “... the constitutional prohibition on gifts of public funds is not necessarily subject to statutory definitions of terms or conditions of employment for purposes of governing labor-management relations between civil service employees and public or governmental employers under the Taylor Law.”
2. Garber v Board of Trustees of State Univ. of N.Y at Stony Brook, 38 AD3d 833. Garber contended that Stony Brook contract with a private developer for construction of a hotel on the SUNY Stony Brook campus was "illegal" and constituted an unconstitutional gift of State property. The Appellate Division held that "Supreme Court correctly determined, upon review of the documents submitted by the parties, that the proposed hotel construction proceeded in accordance with specific enabling legislation enacted by the Legislature" (see the Laws of 1986, Chapter 830 and the Laws of 1989, Chapter 200).
3. Rampello v. East Irondequoit Cent. School Dist. 236 A.D.2d 797. The Appellate Division found that prior to the employee’s retirement the school district had no obligation under its collective bargaining agreement with the Association of East Irondequoit Administrators to make cash payments for unused accumulated sick days upon an employee's retirement. Accordingly, as the Board did not authorize payment for sick days prior to their accumulation, "there was no legal obligation supporting the retirement incentive and the payment to the employee constituted an unconstitutional gift of public funds."
4. Matter of Mahon v Board of Educ., 171 NY 263. The Court of Appeals ruled that the granting of pension benefits to teachers who had retired before the establishment of a pension system was an unconstitutional gift of public funds.
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There may be State Constitution issues to be considered and resolved with respect to providing such a benefit to staff members of public universities and colleges in the SUNY system and their dependents. For example, would granting such a type of benefit constitute an unconstitutional gift of public monies within the meaning of Article VII, §8 of the State Constitution?
Article VII, §8.1, in pertinent part, provides: “The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking, but the foregoing provisions shall not apply to any fund or property now held or which may hereafter be held by the state for educational, mental health or mental retardation purposes.”
New York State courts have ruled on a number of cases involving claims that the challenged action constituted an unconstitutional gift of public monies or property including:
1. Gagliardo v Dinkins, 89 N.Y.2d 62. Here the Court of Appeals said that “... the constitutional prohibition on gifts of public funds is not necessarily subject to statutory definitions of terms or conditions of employment for purposes of governing labor-management relations between civil service employees and public or governmental employers under the Taylor Law.”
2. Garber v Board of Trustees of State Univ. of N.Y at Stony Brook, 38 AD3d 833. Garber contended that Stony Brook contract with a private developer for construction of a hotel on the SUNY Stony Brook campus was "illegal" and constituted an unconstitutional gift of State property. The Appellate Division held that "Supreme Court correctly determined, upon review of the documents submitted by the parties, that the proposed hotel construction proceeded in accordance with specific enabling legislation enacted by the Legislature" (see the Laws of 1986, Chapter 830 and the Laws of 1989, Chapter 200).
3. Rampello v. East Irondequoit Cent. School Dist. 236 A.D.2d 797. The Appellate Division found that prior to the employee’s retirement the school district had no obligation under its collective bargaining agreement with the Association of East Irondequoit Administrators to make cash payments for unused accumulated sick days upon an employee's retirement. Accordingly, as the Board did not authorize payment for sick days prior to their accumulation, "there was no legal obligation supporting the retirement incentive and the payment to the employee constituted an unconstitutional gift of public funds."
4. Matter of Mahon v Board of Educ., 171 NY 263. The Court of Appeals ruled that the granting of pension benefits to teachers who had retired before the establishment of a pension system was an unconstitutional gift of public funds.
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Ex parte communications by the hearing officer not permitted while he or she is preparing the final determination in an administrative proceeding
Ex parte communications by the hearing officer not permitted while he or she is preparing the final determination in an administrative proceeding
Meislahn v McCall, App. Div., Third Dept., 264 AD2d 957
The lesson of the Meislahn decision: a hearing officer may not have ex parte* dealings with litigants in an administrative hearing.
A Town of Clarkstown police officer, William Meislahn, filed an application for accidental disability retirement after he fell while at work and injured himself. A hearing was held by the Retirement System. Meislahn’s application was rejected on the ground that “[Meislahn] had not sustained an accident within the meaning of the Retirement and Social Security Law.” Meislahn appealed the ruling, claiming that his right to due process had been violated.
According to the Appellate Division, after the hearing ended the hearing officer sent her decision to the attorney for the Retirement System. She, however, did not send a copy to Meislahn’s attorney. The attorney for the Retirement System then drafted a proposed final determination based on the hearing officer’s decision and sent it to the hearing officer. The hearing officer signed it on behalf of Comptroller and returned it to the attorney for the Retirement System.
The Retirement System’s attorney then sent a copy of the Hearing Officer’s decision and the Comptroller’s determination as signed by the Hearing Officer to Meislahn’s attorney. Meislahn argued that such a procedure violated his right to administrative due process.
Referring to an earlier opinion, Le Pore v McCall, 262 AD2d 919, the Appellate Division said in Le Pore it had concluded that a similar procedure violated State Administrative Procedure Act Section 307(2) and “created such an appearance of impropriety and bias to warrant an annulment of the determination.”
In Le Pore the Appellate Division found that:
Upon the Hearing Officer's request, the Retirement System attorney drafted the findings of fact, conclusions of law and final determination in this matter and sent it back to the Hearing Officer, who then signed it for [Retirement System] on July 25, 1997 and returned the determination to the Retirement System's attorney. It was not until August 29, 1997 that the decision of the Hearing Officer and [Comptroller's] determination were first sent to [Le Pore's] attorney.
The court agreed with Le Pore that he was denied due process by the Hearing Officer's clear and flagrant violation of State Administrative Procedure Act Section 307(2), which prohibits ex parte communications.
As it did in La Pore, the Appellate Division remanded the matter to the Comptroller for a de novo determination based on the record.
* The term ex parte is used to describe situations in which only one of the parties in an action appears before a judge, an arbitrator or a hearing officer without the knowledge of the other party or parties to discuss the case. Such meetings or communications are prohibited to prevent influencing a judicial or quasi-judicial decision as a result of a one-sided or partisan point of view.
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Meislahn v McCall, App. Div., Third Dept., 264 AD2d 957
The lesson of the Meislahn decision: a hearing officer may not have ex parte* dealings with litigants in an administrative hearing.
A Town of Clarkstown police officer, William Meislahn, filed an application for accidental disability retirement after he fell while at work and injured himself. A hearing was held by the Retirement System. Meislahn’s application was rejected on the ground that “[Meislahn] had not sustained an accident within the meaning of the Retirement and Social Security Law.” Meislahn appealed the ruling, claiming that his right to due process had been violated.
According to the Appellate Division, after the hearing ended the hearing officer sent her decision to the attorney for the Retirement System. She, however, did not send a copy to Meislahn’s attorney. The attorney for the Retirement System then drafted a proposed final determination based on the hearing officer’s decision and sent it to the hearing officer. The hearing officer signed it on behalf of Comptroller and returned it to the attorney for the Retirement System.
The Retirement System’s attorney then sent a copy of the Hearing Officer’s decision and the Comptroller’s determination as signed by the Hearing Officer to Meislahn’s attorney. Meislahn argued that such a procedure violated his right to administrative due process.
Referring to an earlier opinion, Le Pore v McCall, 262 AD2d 919, the Appellate Division said in Le Pore it had concluded that a similar procedure violated State Administrative Procedure Act Section 307(2) and “created such an appearance of impropriety and bias to warrant an annulment of the determination.”
In Le Pore the Appellate Division found that:
Upon the Hearing Officer's request, the Retirement System attorney drafted the findings of fact, conclusions of law and final determination in this matter and sent it back to the Hearing Officer, who then signed it for [Retirement System] on July 25, 1997 and returned the determination to the Retirement System's attorney. It was not until August 29, 1997 that the decision of the Hearing Officer and [Comptroller's] determination were first sent to [Le Pore's] attorney.
The court agreed with Le Pore that he was denied due process by the Hearing Officer's clear and flagrant violation of State Administrative Procedure Act Section 307(2), which prohibits ex parte communications.
As it did in La Pore, the Appellate Division remanded the matter to the Comptroller for a de novo determination based on the record.
* The term ex parte is used to describe situations in which only one of the parties in an action appears before a judge, an arbitrator or a hearing officer without the knowledge of the other party or parties to discuss the case. Such meetings or communications are prohibited to prevent influencing a judicial or quasi-judicial decision as a result of a one-sided or partisan point of view.
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Lawsuit challenging reassignment to another position rule moot because employee retired before trial
Lawsuit challenging reassignment to another position rule moot because employee retired before trial
Cannon v Watervliet, App. Div., Third Dept., 263 AD2d 920, Motion for leave to appeal denied, 94 NY2d 756
The City of Watervliet reassigned John Cannon from the position of investigator to the uniform patrol division. He was continued in his rank of sergeant. Typically the appointing authority has the right to reassign an employee to another position for which he or she is qualified without the individual’s consent.
Cannon sued, seeking to be reinstated as an investigator. Because Cannon had retired before his petition went to trial, Supreme Court dismissed his petition as moot. The Appellate Division affirmed the lower court’s determination. It pointed out that a case that is moot may not be considered by the court unless it falls within the exception to the mootness doctrine:
1. A likelihood of repetition, either between the parties or among other members of the public;
2. A phenomenon typically evading review; and
3. A showing of significant or important questions not previously passed on, i.e., substantial and novel issues.”
The Appellate Division pointed out that Cannon’s retirement clearly rendered his petition moot inasmuch as the primary relief he requested, reinstatement to his former position of investigator, was no longer attainable. Significantly, the court noted that since Cannon retained the rank of sergeant, there is no indication that his salary or benefits were adversely affected.
Additionally, the Appellate Division rejected Cannon’s claim that he was forced to retire, stating that it found no evidence “that the reassignment forced [Cannon] into retirement, [since] there is no evidence of duress or coercion in this record from which we can conclude that his retirement was involuntary.”
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Cannon v Watervliet, App. Div., Third Dept., 263 AD2d 920, Motion for leave to appeal denied, 94 NY2d 756
The City of Watervliet reassigned John Cannon from the position of investigator to the uniform patrol division. He was continued in his rank of sergeant. Typically the appointing authority has the right to reassign an employee to another position for which he or she is qualified without the individual’s consent.
Cannon sued, seeking to be reinstated as an investigator. Because Cannon had retired before his petition went to trial, Supreme Court dismissed his petition as moot. The Appellate Division affirmed the lower court’s determination. It pointed out that a case that is moot may not be considered by the court unless it falls within the exception to the mootness doctrine:
1. A likelihood of repetition, either between the parties or among other members of the public;
2. A phenomenon typically evading review; and
3. A showing of significant or important questions not previously passed on, i.e., substantial and novel issues.”
The Appellate Division pointed out that Cannon’s retirement clearly rendered his petition moot inasmuch as the primary relief he requested, reinstatement to his former position of investigator, was no longer attainable. Significantly, the court noted that since Cannon retained the rank of sergeant, there is no indication that his salary or benefits were adversely affected.
Additionally, the Appellate Division rejected Cannon’s claim that he was forced to retire, stating that it found no evidence “that the reassignment forced [Cannon] into retirement, [since] there is no evidence of duress or coercion in this record from which we can conclude that his retirement was involuntary.”
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Refusing a light duty assignment
Refusing a light duty assignment
Korczyk v City of Albany, 264 AD2d 908
The Appellate Division’s ruling in the Korczyk case cautions that public employees injured in the line of duty may be required by their employer to accept light duty assignments if medically able to do so or risk losing their workers’ compensation benefits.
A similar result is mandated by Sections 207-a and 207-c of the General Municipal Law. These sections provide benefits to firefighters and police officers injured in the line of duty. Such benefits must be discontinued if the injured firefighter or police officer refuses to accept an appropriate light duty assignment for which he or she is found to be medically qualified.
The case involved Stephanie Korczyk, a mechanic’s helper for the City of Albany. In 1992, Korczyk injured her back while at work.
After initially paying her workers’ compensation benefits for about a year, the city sought to end the payment of such benefits on the theory that Korczyk had “voluntary withdrawn from the labor market.” Its explanation for how it reached that conclusion: Korczyk had refused to accept a light duty assignment it had offered to her.
According to Korczyk, she had discussed the city’s offer of a light duty assignment with her chiropractor, P. J. Leonard in April 1993 and Leonard told her that she was incapable of working the eight-hour day required by the assignment. She told the city that “she would return to work as soon as Leonard released her to do so.”
But, according to the decision, “Leonard testified that [Korczyk] was able to return to work to some degree in February 1993” and that “[h]is notes did not reflect, and he did not recollect, any discussion with Korczyk about an offer of a light-duty assignment in April 1993.”
Korczyk conceded that she did not ask Leonard whether she could return to work until she took a part-time job in December 1993 while attending college.
After “a full development of the record”, the Workers’ Compensation Board ruled that Korczyk’s refusal of the city’s offer of light-duty work constituted a voluntary withdrawal from the labor market and her workers’ compensation benefits were stopped. Korczyk appealed.
The basic issue: does a claimant’s failure to accept a light-duty assignment constitutes a voluntary withdrawal from the labor market? The Appellate Division said this was an issue for the Workers’ Compensation Board rather than the courts to resolve.
The court sustained the board’s finding that Korczyk voluntarily withdrew from the labor market by refusing a light-duty assignment some eight months before she took the part-time job, noting that the board’s finding was supported by substantial evidence.
Another point: it should be remembered that Section 71 of the Civil Service Law mandates that a public employee in the classified service who has been disabled as a result of an occupational injury or disease as defined in the Workers’ Compensation Law is entitled to leave without pay for at least one year unless the disability is “of such a nature as to permanently incapacitate” the individual for the performance of the duties of the position.
It is expected that the courts would view the right to Section 71 leave and the right to workers’ compensation benefits as independent rights and the loss of eligibility for one would not necessarily have an adverse impact on the individual’s right to the other.
In other words, even if an individual on Section 71 leave is “terminated” after one year of such absence, this action does not result in the automatic discontinuation of his or her workers’ compensation benefits. By the same token, the fact that an individual is declared ineligible for workers’ compensation benefits would not automatically mean that his or her Section 71 leave status ends.
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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
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Korczyk v City of Albany, 264 AD2d 908
The Appellate Division’s ruling in the Korczyk case cautions that public employees injured in the line of duty may be required by their employer to accept light duty assignments if medically able to do so or risk losing their workers’ compensation benefits.
A similar result is mandated by Sections 207-a and 207-c of the General Municipal Law. These sections provide benefits to firefighters and police officers injured in the line of duty. Such benefits must be discontinued if the injured firefighter or police officer refuses to accept an appropriate light duty assignment for which he or she is found to be medically qualified.
The case involved Stephanie Korczyk, a mechanic’s helper for the City of Albany. In 1992, Korczyk injured her back while at work.
After initially paying her workers’ compensation benefits for about a year, the city sought to end the payment of such benefits on the theory that Korczyk had “voluntary withdrawn from the labor market.” Its explanation for how it reached that conclusion: Korczyk had refused to accept a light duty assignment it had offered to her.
According to Korczyk, she had discussed the city’s offer of a light duty assignment with her chiropractor, P. J. Leonard in April 1993 and Leonard told her that she was incapable of working the eight-hour day required by the assignment. She told the city that “she would return to work as soon as Leonard released her to do so.”
But, according to the decision, “Leonard testified that [Korczyk] was able to return to work to some degree in February 1993” and that “[h]is notes did not reflect, and he did not recollect, any discussion with Korczyk about an offer of a light-duty assignment in April 1993.”
Korczyk conceded that she did not ask Leonard whether she could return to work until she took a part-time job in December 1993 while attending college.
After “a full development of the record”, the Workers’ Compensation Board ruled that Korczyk’s refusal of the city’s offer of light-duty work constituted a voluntary withdrawal from the labor market and her workers’ compensation benefits were stopped. Korczyk appealed.
The basic issue: does a claimant’s failure to accept a light-duty assignment constitutes a voluntary withdrawal from the labor market? The Appellate Division said this was an issue for the Workers’ Compensation Board rather than the courts to resolve.
The court sustained the board’s finding that Korczyk voluntarily withdrew from the labor market by refusing a light-duty assignment some eight months before she took the part-time job, noting that the board’s finding was supported by substantial evidence.
Another point: it should be remembered that Section 71 of the Civil Service Law mandates that a public employee in the classified service who has been disabled as a result of an occupational injury or disease as defined in the Workers’ Compensation Law is entitled to leave without pay for at least one year unless the disability is “of such a nature as to permanently incapacitate” the individual for the performance of the duties of the position.
It is expected that the courts would view the right to Section 71 leave and the right to workers’ compensation benefits as independent rights and the loss of eligibility for one would not necessarily have an adverse impact on the individual’s right to the other.
In other words, even if an individual on Section 71 leave is “terminated” after one year of such absence, this action does not result in the automatic discontinuation of his or her workers’ compensation benefits. By the same token, the fact that an individual is declared ineligible for workers’ compensation benefits would not automatically mean that his or her Section 71 leave status ends.
============================================
If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
============================================
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A prisoner while assigned to a work crew is not an employee
A prisoner while assigned to a work crew is not an employee
Richel v Village of Angola, Fourth Dept., 265 AD2d 864
Joseph Richel, an inmate at the Gowanda Correctional Facility, was injured in a fall from a scaffold while assigned to a work crew that was spray-painting a building owned by the Village of Angola. He sued, contending that the Village created a dangerous condition by providing unsafe and inadequate equipment in violation of Section 240(1) of the Labor Law.
The Appellate Division, Fourth Department, rejected Richel’s theory, commenting that “[a]s an inmate, [Richel] was not an employee of the Village or the State of New York when he was injured, and thus he is not an employee subject to the protection of Labor Law Section 240(1).”
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Richel v Village of Angola, Fourth Dept., 265 AD2d 864
Joseph Richel, an inmate at the Gowanda Correctional Facility, was injured in a fall from a scaffold while assigned to a work crew that was spray-painting a building owned by the Village of Angola. He sued, contending that the Village created a dangerous condition by providing unsafe and inadequate equipment in violation of Section 240(1) of the Labor Law.
The Appellate Division, Fourth Department, rejected Richel’s theory, commenting that “[a]s an inmate, [Richel] was not an employee of the Village or the State of New York when he was injured, and thus he is not an employee subject to the protection of Labor Law Section 240(1).”
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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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For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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