Employee disciplined for disruptive behavior alleges charges were based on the employer's perception of a disability
Robinson v NYS Division of Human Rights, 277 AD2d 76
The appointing authority orders an employee who is exhibiting disruptive behavior to report for a drug test or for a physiological evaluation. Does such a directive constitute unlawful discrimination on the grounds that the employer has a perception that the employee has a disability? Such directives were the basis for New York City corrections officer Michael Robinson filing discrimination complaints against the New York City Department of Corrections.
According to the decision by the Appellate Division, First Department, Michael Robinson had a number of disciplinary problems over a period of time. In 1984 he accepted a command discipline penalty of two pass days for being absent without leave. This disciplinary action was followed by a pattern of lateness, unexcused absences and volatile behavior, including use of excessive force against inmates and verbal abuse of superiors and fellow officers.
Robinson was ordered to submit to urinalysis and to undergo psychiatric evaluation in connection with charges of attendance and conduct deficiencies during 1984 and 1985, as well as the investigation of an automobile accident on December 19, 1984.
As a result, Robinson filed a complaint with the New York State Division of Human Rights [DHR] contending that DOC had discriminated against him on the basis of perceived disabilities. Robinson subsequently filed additional allegations of unlawful discrimination, claiming that DOC had retaliated against him in response to Dorr’s finding of probable cause by first suspending and then terminating him.
The New York State Division of Human Rights found that DOC had unlawfully discriminated against Robinson by creating a hostile work environment based upon a belief that Robinson was mentally unstable or under the influence of drugs. It awarded Robinson $75,000 in compensatory damages and directed DOC to reinstate him to his former position.
Although the Appellate Division vacated Dorr’s decision for technical reasons based on timeliness, it commented that were it to have to decide on the case on its merits, it would find Robinson’s allegations of harassment to be baseless.
The Appellate Division explained that “[t]here is ample evidence of [Robinson’s] erratic and hostile conduct to warrant subjecting him to physical and psychological evaluation.”
The fact the test results were negative were apparently not considered relevant as the court commented that it noted that Robinson’s behavior continued to be erratic.
The court concluded that “considering DOC’s responsibility for the safety of its officers as well as the inmates they oversee and its exposure to liability for any injury that might result ... its precautions cannot be viewed as unreasonable or discriminatory.”
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.
Dec 7, 2010
Dec 6, 2010
New York State Register
New York State Register
Source: New York State Department of State
The New York State Register provides notice of proposed new administrative rules and amendments to existing administrative rules. It also posts emergency rules and other information.
Also available is the revised Rule Making in New York manual. The manual outlines the procedures for preparation of SAPA notices for the New York State Register and for Filing adopted rules for publication in the official NYCRR. You may download PDF version of the manual by clicking here (218kb 74 pages).
To access the New York State Register on the Internet, go to: http://www.dos.state.ny.us/info/register.htm
The Department of State’s site also provides a fully searchable "rule making" database starting with postings from 2007. Postings are provided in a PDF format.
You may subscribe to a free weekly State Register email alert using a link provided on the site. that will notify subscribers when new postings are available.
Source: New York State Department of State
The New York State Register provides notice of proposed new administrative rules and amendments to existing administrative rules. It also posts emergency rules and other information.
Also available is the revised Rule Making in New York manual. The manual outlines the procedures for preparation of SAPA notices for the New York State Register and for Filing adopted rules for publication in the official NYCRR. You may download PDF version of the manual by clicking here (218kb 74 pages).
To access the New York State Register on the Internet, go to: http://www.dos.state.ny.us/info/register.htm
The Department of State’s site also provides a fully searchable "rule making" database starting with postings from 2007. Postings are provided in a PDF format.
You may subscribe to a free weekly State Register email alert using a link provided on the site. that will notify subscribers when new postings are available.
An administrative agency must follow the rules and regulations applicable to it in making its final administrative decision
An administrative agency must follow the rules and regulations applicable to it in making its final administrative decision
Matter of Hasberry v New York City Dept. of Educ., 2010 NY Slip Op 08792, decided on November 30, 2010, Appellate Division, First Department
The Department of Education (DOE) rejected applications for certification as New York City school bus drivers or bus escorts filed by a number of individuals on the basis of “criminal convictions that purportedly rendered them unsuitable to perform the duties associated with the transportation of school age children.”
While Supreme Court dismissed the petitions challenging this action, the Appellate Division reinstated the petitions with respect to DOE and remitted the matter to DOE for further proceedings.
Although the applicants were all denied certification on the basis of criminal convictions, the Appellate Division noted that the New York City Chancellor's Regulation C-105 provides that "If, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with the [Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information."
In this instance, said the court, DOE did not provide the applicants with such an opportunity prior to making its determinations.
Conceding DOE’s concerns and “the need to protect the safety of children to be transported,” the Appellate Division said that DOE is bound by its own rules and regulations, including its procedural rules. Here the applicants were not given an opportunity to review the information that DOE relied upon in making its determination prior to its making its decision.
The court directed DOE to provide the applicants with an opportunity to review the information upon which DOE's determinations were based and to submit such statements and documents they wish in explanation or rebuttal of such information as required by Chancellor’s Regulation C-105.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08792.htm
NYPPL
Matter of Hasberry v New York City Dept. of Educ., 2010 NY Slip Op 08792, decided on November 30, 2010, Appellate Division, First Department
The Department of Education (DOE) rejected applications for certification as New York City school bus drivers or bus escorts filed by a number of individuals on the basis of “criminal convictions that purportedly rendered them unsuitable to perform the duties associated with the transportation of school age children.”
While Supreme Court dismissed the petitions challenging this action, the Appellate Division reinstated the petitions with respect to DOE and remitted the matter to DOE for further proceedings.
Although the applicants were all denied certification on the basis of criminal convictions, the Appellate Division noted that the New York City Chancellor's Regulation C-105 provides that "If, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with the [Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information."
In this instance, said the court, DOE did not provide the applicants with such an opportunity prior to making its determinations.
Conceding DOE’s concerns and “the need to protect the safety of children to be transported,” the Appellate Division said that DOE is bound by its own rules and regulations, including its procedural rules. Here the applicants were not given an opportunity to review the information that DOE relied upon in making its determination prior to its making its decision.
The court directed DOE to provide the applicants with an opportunity to review the information upon which DOE's determinations were based and to submit such statements and documents they wish in explanation or rebuttal of such information as required by Chancellor’s Regulation C-105.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08792.htm
NYPPL
Appointing authority’s threat to take action against an employee that is otherwise lawful to attain a desired result does not constitute duress
Appointing authority’s threat to take action against an employee that is otherwise lawful to attain a desired result does not constitute duress
Matter of Buric v Kelly, 2010 NY Slip Op 08786, Decided on November 30, 2010, Appellate Division, First Department
John Buric challenged the Police Commissioner’s determination that he be retired with ordinary disability retirement benefits.
Essentially Buric complained that his decision to file for a service retirement was involuntary and the result of fraud, duress, coercion, or other misconduct by New York City Police Commissioner Raymond Kelly.
Supreme Court rejected Buric’s claim that he was told that “he had to make an immediate decision with respect to his pension election, that he could not indicate on his election letter that his decision was made under duress, or that it would be futile to consult an attorney prior to making such an election.”
In affirming the lower court’s decision the Appellate Division observed that Supreme Court’s “findings of fact, based in large measure on its assessment of the credibility of the witnesses,” were supported by a fair interpretation of the record evidence.
Addressing Buric allegations that “he was given two unpalatable choices,* or that he chose the service retirement due to financial considerations,” the Appellate Division said that neither constituted duress, citing two decisions; Wolfe v Jurczynski, 241 AD2d 88, and Matter of Donato v Mills, 6 AD3d 966.
* In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals ruled that an appointing authority’s threat to undertake certain action that it otherwise had the legal right to take did not constitute duress.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08786.htm
NYPPL
Matter of Buric v Kelly, 2010 NY Slip Op 08786, Decided on November 30, 2010, Appellate Division, First Department
John Buric challenged the Police Commissioner’s determination that he be retired with ordinary disability retirement benefits.
Essentially Buric complained that his decision to file for a service retirement was involuntary and the result of fraud, duress, coercion, or other misconduct by New York City Police Commissioner Raymond Kelly.
Supreme Court rejected Buric’s claim that he was told that “he had to make an immediate decision with respect to his pension election, that he could not indicate on his election letter that his decision was made under duress, or that it would be futile to consult an attorney prior to making such an election.”
In affirming the lower court’s decision the Appellate Division observed that Supreme Court’s “findings of fact, based in large measure on its assessment of the credibility of the witnesses,” were supported by a fair interpretation of the record evidence.
Addressing Buric allegations that “he was given two unpalatable choices,* or that he chose the service retirement due to financial considerations,” the Appellate Division said that neither constituted duress, citing two decisions; Wolfe v Jurczynski, 241 AD2d 88, and Matter of Donato v Mills, 6 AD3d 966.
* In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals ruled that an appointing authority’s threat to undertake certain action that it otherwise had the legal right to take did not constitute duress.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08786.htm
NYPPL
Assumption of risk in a work-related activity
Assumption of risk in a work-related activity
Rios v Town of Colonie, 256 AD2d 900
Public safety agencies often sponsor athletic events or authorize members to participate in them. The Rios case involved Ramon Rios, a Town of Colonie corrections officer, who was injured while participating in “Department Olympics.”
Rios alleged that he was injured when he entered an obstacle course, which included a three-foot diameter black plastic culvert pipe and grazed his head on the “sharp and jagged edge of the pipe.” The cut to the top of his head required 21 sutures to close. He sued the town for his injuries.
Colonie objected and asked a Supreme Court judge to dismiss Rios’ complaint, contending that the doctrine of assumption of risk applied in this case.*
When the court dismissed the town’s motion, it appealed. The Appellate Division sustained the lower court’s ruling, indicating that Rios’ allegations had raised “genuine factual issues” as to whether the “sharp, razor-like and serrated edge” of the culvert pipe posed an open and obvious risk to him, or whether it constituted an “unassumed, concealed or unreasonably increased risk” to Rios.
Noting that Rios’ time to inspect the course was limited to a brief “walk-through” prior to the race, the Appellate Division returned the matter to the lower court for further action.
* The doctrine of assumption of risk holds that a participant in an athletic event of this type “assumed the risks that are generally inherent and flow from his [or her] participation” in these events. The participant in such events, however, does not assume risks that are unique and resulted from dangerous conditions.
NYPPL
Rios v Town of Colonie, 256 AD2d 900
Public safety agencies often sponsor athletic events or authorize members to participate in them. The Rios case involved Ramon Rios, a Town of Colonie corrections officer, who was injured while participating in “Department Olympics.”
Rios alleged that he was injured when he entered an obstacle course, which included a three-foot diameter black plastic culvert pipe and grazed his head on the “sharp and jagged edge of the pipe.” The cut to the top of his head required 21 sutures to close. He sued the town for his injuries.
Colonie objected and asked a Supreme Court judge to dismiss Rios’ complaint, contending that the doctrine of assumption of risk applied in this case.*
When the court dismissed the town’s motion, it appealed. The Appellate Division sustained the lower court’s ruling, indicating that Rios’ allegations had raised “genuine factual issues” as to whether the “sharp, razor-like and serrated edge” of the culvert pipe posed an open and obvious risk to him, or whether it constituted an “unassumed, concealed or unreasonably increased risk” to Rios.
Noting that Rios’ time to inspect the course was limited to a brief “walk-through” prior to the race, the Appellate Division returned the matter to the lower court for further action.
* The doctrine of assumption of risk holds that a participant in an athletic event of this type “assumed the risks that are generally inherent and flow from his [or her] participation” in these events. The participant in such events, however, does not assume risks that are unique and resulted from dangerous conditions.
NYPPL
Challenging a disciplinary penalty
Challenging a disciplinary penalty
Mantione v Levin, 277 AD2d 952
Ever wonder why some disciplinary action appeals are transferred to the Appellate Division by a State Supreme Court Judge? The Mantione decision sets out guidelines followed by the Appellate Division courts in determining whether a petition seeking to vacate or modify the penalty imposed in a disciplinary proceeding should be transferred to it.
Essentially, cases filed in Supreme Court that turn on whether or not the determination of guilt is supported by substantial evidence are to be transferred to the Appellate Division.
Salvatore S. Mantione was disciplined by the Commissioner of Insurance. Mantione admitted that he committed the acts alleged in the charges. Although neither party raised the issue whether the determination of guilt is supported by substantial evidence, a State Supreme Court judge decided that it was necessary to independently analyze the case to decide whether the substantial evidence test is properly applicable.
As any issue concerning substantial evidence is to be determined by an Appellate Division tribunal, the Supreme Court Judge sua sponte [on its own motion] determined that transfer was mandated by Civil Practice Law and Rules Sections 7803(4) and 7804(g) and sent it to the Fourth Department.
The Fourth Department said that the lower court was incorrect as a matter of law in finding an issue of substantial evidence and that the proceeding should not have been transferred.
It vacated the order transferring the action and returned the case to Supreme Court to review the penalty imposed. In other words, questions involving whether or not an administrative determination is supported by substantial evidence are to be resolved by the Appellate Division.
In contrast, questions concerning the reasonableness of the penalty imposed by an administrative tribunal after it finds a party guilty are to be initially considered by a State Supreme Court Judge.
As then State Supreme Court Judge Walter J. Relihan, Jr. stated in Eckstrom v City of Ithaca, [not officially reported], since the issue before him was not whether the administrative decision was supported by substantial evidence but rather whether the resolution violated Eckstrom’s rights as a matter of law, it should not be transferred to the Appellate Division.
Mantione v Levin, 277 AD2d 952
Ever wonder why some disciplinary action appeals are transferred to the Appellate Division by a State Supreme Court Judge? The Mantione decision sets out guidelines followed by the Appellate Division courts in determining whether a petition seeking to vacate or modify the penalty imposed in a disciplinary proceeding should be transferred to it.
Essentially, cases filed in Supreme Court that turn on whether or not the determination of guilt is supported by substantial evidence are to be transferred to the Appellate Division.
Salvatore S. Mantione was disciplined by the Commissioner of Insurance. Mantione admitted that he committed the acts alleged in the charges. Although neither party raised the issue whether the determination of guilt is supported by substantial evidence, a State Supreme Court judge decided that it was necessary to independently analyze the case to decide whether the substantial evidence test is properly applicable.
As any issue concerning substantial evidence is to be determined by an Appellate Division tribunal, the Supreme Court Judge sua sponte [on its own motion] determined that transfer was mandated by Civil Practice Law and Rules Sections 7803(4) and 7804(g) and sent it to the Fourth Department.
The Fourth Department said that the lower court was incorrect as a matter of law in finding an issue of substantial evidence and that the proceeding should not have been transferred.
It vacated the order transferring the action and returned the case to Supreme Court to review the penalty imposed. In other words, questions involving whether or not an administrative determination is supported by substantial evidence are to be resolved by the Appellate Division.
In contrast, questions concerning the reasonableness of the penalty imposed by an administrative tribunal after it finds a party guilty are to be initially considered by a State Supreme Court Judge.
As then State Supreme Court Judge Walter J. Relihan, Jr. stated in Eckstrom v City of Ithaca, [not officially reported], since the issue before him was not whether the administrative decision was supported by substantial evidence but rather whether the resolution violated Eckstrom’s rights as a matter of law, it should not be transferred to the Appellate Division.
Employee claims termination was in retaliation and that her employer defamed her
Employee claims termination was in retaliation and that her employer defamed her
Employee claims termination was in retaliation and that her employer defamed her
Gilligan v Town of Moreau, CA2, 2000 U.S. App. LEXIS 27198
In the Gilligan case the major issues involved allegations by a former employee of the Town of Moreau (a) that she was dismissed from her position with the Town in retaliation for her testifying before a grand jury and (b) that she had been defamed by Town officials.
Among the events that resulted in this litigation was a New York State Police investigation of the activities of the Town Supervisor, Michael Sullivan, and Frank Burt, a contractor hired to haul sand to the town’s landfill. Danielle Gilligan, an equipment operator at the landfill, and the other landfill employees, together with other Town employees, testified before the grand jury impaneled to consider criminal charges leveled against Burt and Sullivan.
During the summer and fall of 1995, Sullivan reportedly made vulgar, derogatory comments about Gilligan and told Board members of a rumor that Gilligan had been caught having sex on town property, even though he believed the rumor nonsensical. Gilligan was terminated from her position in February, 1996.
Gilligan sued, alleging that her terminations, and other adverse employment actions taken against her, were in retaliation for her grand jury testimony and that she had been defamed by Town officials.
Concerning retaliation
The Second Circuit, noting that [i]t is well settled that a public employer cannot discharge or retaliate against employees for the exercise of their First Amendment right to free speech, indicated that Gilligan’s grand jury testimony is such a protected activity. Further, said the court, it is well settled that discharge is an adverse employment decision.
In order to win a retaliatory discharge claim, however, the employee must, by a preponderance of the evidence, prove:
1. he or she engaged in a protected activity;
2. suffered an adverse employment decision; and
3. there was a causal link between her protected activity and the adverse employment decision.
The test to be met in order to demonstrate a causal connection between the protected activity and the retaliatory discharge: sufficient evidence to support an inference that the protected speech was a substantial motivating factor in the adverse employment action. Stated another way: the adverse employment action would not have been taken absent the employee’s protected speech.
The employee may prove such a casual connection by showing (a) the retaliatory action occurred close in time to the protected activities; (b) disparate treatment compared to similarly situated employees or (c) direct proof of retaliatory animus against the individual.
Here the Circuit Court concluded that Gilligan failed to show a causal connection between her grand jury testimony and her eventual discharge. Why? Because, said the court, Gilligan did not prove that the Town and the other defendants were aware of the substance of her protected speech before discharging her.*
Further, the Circuit Court decided that the defendants offered several legitimate, non-retaliatory reasons for its dismissing Gilligan which she failed to rebut -- there was not enough work at the landfill to justify employing three people; Gilligan was laid off because she lacked seniority; and she did not have the commercial driving license necessary to perform an essential job.
While Gilligan established a prima facie case, raising a presumption of retaliatory discharge, the Town overcame this presumption by offering legitimate, non-retaliatory reasons for her termination. Gilligan was then required to rebut this by demonstrating that the Town’s explanation was pretextual.
In the opinion of the court, Gilligan failed to produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false.... Accordingly, it affirmed the district court’s granting the Town’s motion for summary judgment in its favor.
Concerning defamation
Another aspect of the case involved Gilligan’s complaint that she had been defamed. Here the court ruled that “an employee may have a protectable liberty interest [w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.”
Such an interest is implicated if [he or] she is dismissed based on charges that impose a stigma, or other disability, that prevent her from taking advantage of other employment opportunities. Such a stigma may be shown by proving that the statements will result in public opprobrium and damage to the employee’s reputation.
The circuit decided that the district court correctly found statements and rumors underlying Gilligan’s complaint did not satisfy the “stigma plus standard” followed in the Second Circuit. This standard requires a concurrent temporal link between the defamation and the dismissal.
In dismissing this element of Gilligan’s appeal, the court said that the statements were required to have been made close proximity to Gilligan’s separation and Gilligan failed to establish the statements were made concurrent with her layoff or the failure to rehire her.
While apparently not an issue in this appeal, if there was publication of the statements Gilligan alleged were stigmatizing by the Town, she probably could have demanded a name-clearing hearing.
A name-clearing hearing is available to a person, typically a temporary, provisional or probationary employee, who although lawfully terminated from his or her public employment, claims that the action disparaged his or her reputation in the community or adversely affected his or her ability to secure alternative employment.
In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.
Prevailing at a name-clearing hearing, however, would not have resulted in the employee’s having any claim to reinstatement or damages.
* Gilligan testified she told no one of the substance of her grand jury testimony prior to her testifying in open court at the Burt trial in April 1996. Gilligan was discharged in February 1996, two months before her in-court testimony.
NYPPL
Employee claims termination was in retaliation and that her employer defamed her
Gilligan v Town of Moreau, CA2, 2000 U.S. App. LEXIS 27198
In the Gilligan case the major issues involved allegations by a former employee of the Town of Moreau (a) that she was dismissed from her position with the Town in retaliation for her testifying before a grand jury and (b) that she had been defamed by Town officials.
Among the events that resulted in this litigation was a New York State Police investigation of the activities of the Town Supervisor, Michael Sullivan, and Frank Burt, a contractor hired to haul sand to the town’s landfill. Danielle Gilligan, an equipment operator at the landfill, and the other landfill employees, together with other Town employees, testified before the grand jury impaneled to consider criminal charges leveled against Burt and Sullivan.
During the summer and fall of 1995, Sullivan reportedly made vulgar, derogatory comments about Gilligan and told Board members of a rumor that Gilligan had been caught having sex on town property, even though he believed the rumor nonsensical. Gilligan was terminated from her position in February, 1996.
Gilligan sued, alleging that her terminations, and other adverse employment actions taken against her, were in retaliation for her grand jury testimony and that she had been defamed by Town officials.
Concerning retaliation
The Second Circuit, noting that [i]t is well settled that a public employer cannot discharge or retaliate against employees for the exercise of their First Amendment right to free speech, indicated that Gilligan’s grand jury testimony is such a protected activity. Further, said the court, it is well settled that discharge is an adverse employment decision.
In order to win a retaliatory discharge claim, however, the employee must, by a preponderance of the evidence, prove:
1. he or she engaged in a protected activity;
2. suffered an adverse employment decision; and
3. there was a causal link between her protected activity and the adverse employment decision.
The test to be met in order to demonstrate a causal connection between the protected activity and the retaliatory discharge: sufficient evidence to support an inference that the protected speech was a substantial motivating factor in the adverse employment action. Stated another way: the adverse employment action would not have been taken absent the employee’s protected speech.
The employee may prove such a casual connection by showing (a) the retaliatory action occurred close in time to the protected activities; (b) disparate treatment compared to similarly situated employees or (c) direct proof of retaliatory animus against the individual.
Here the Circuit Court concluded that Gilligan failed to show a causal connection between her grand jury testimony and her eventual discharge. Why? Because, said the court, Gilligan did not prove that the Town and the other defendants were aware of the substance of her protected speech before discharging her.*
Further, the Circuit Court decided that the defendants offered several legitimate, non-retaliatory reasons for its dismissing Gilligan which she failed to rebut -- there was not enough work at the landfill to justify employing three people; Gilligan was laid off because she lacked seniority; and she did not have the commercial driving license necessary to perform an essential job.
While Gilligan established a prima facie case, raising a presumption of retaliatory discharge, the Town overcame this presumption by offering legitimate, non-retaliatory reasons for her termination. Gilligan was then required to rebut this by demonstrating that the Town’s explanation was pretextual.
In the opinion of the court, Gilligan failed to produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false.... Accordingly, it affirmed the district court’s granting the Town’s motion for summary judgment in its favor.
Concerning defamation
Another aspect of the case involved Gilligan’s complaint that she had been defamed. Here the court ruled that “an employee may have a protectable liberty interest [w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.”
Such an interest is implicated if [he or] she is dismissed based on charges that impose a stigma, or other disability, that prevent her from taking advantage of other employment opportunities. Such a stigma may be shown by proving that the statements will result in public opprobrium and damage to the employee’s reputation.
The circuit decided that the district court correctly found statements and rumors underlying Gilligan’s complaint did not satisfy the “stigma plus standard” followed in the Second Circuit. This standard requires a concurrent temporal link between the defamation and the dismissal.
In dismissing this element of Gilligan’s appeal, the court said that the statements were required to have been made close proximity to Gilligan’s separation and Gilligan failed to establish the statements were made concurrent with her layoff or the failure to rehire her.
While apparently not an issue in this appeal, if there was publication of the statements Gilligan alleged were stigmatizing by the Town, she probably could have demanded a name-clearing hearing.
A name-clearing hearing is available to a person, typically a temporary, provisional or probationary employee, who although lawfully terminated from his or her public employment, claims that the action disparaged his or her reputation in the community or adversely affected his or her ability to secure alternative employment.
In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.
Prevailing at a name-clearing hearing, however, would not have resulted in the employee’s having any claim to reinstatement or damages.
* Gilligan testified she told no one of the substance of her grand jury testimony prior to her testifying in open court at the Burt trial in April 1996. Gilligan was discharged in February 1996, two months before her in-court testimony.
NYPPL
Dec 4, 2010
Attorneys, Arbitrators, Consultants, Expert Witnesses
Attorneys, Arbitrators, Consultants, Expert Witnesses
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NYPPL readers often ask for the name of a professional to handle a personnel, retirement, civil rights or other employment related matter. If you or your firm is interested in being listed in NYPPL’s directory of professionals, send an e-mail to publications@nycap.rr.com with the word “Directory” as the subject and the details will be e-mailed back to you.
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NYPPL readers often ask for the name of a professional to handle a personnel, retirement, civil rights or other employment related matter. If you or your firm is interested in being listed in NYPPL’s directory of professionals, send an e-mail to publications@nycap.rr.com with the word “Directory” as the subject and the details will be e-mailed back to you.
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The law of defamation in New York
The law of defamation in New York
Source: New York State Bar Journal
Mitchell H. Rubinstein, Adjunct Professor at the New York Law School and St. John's University - School of Law and a frequent contributor to NYPPL, has written an article entitled A Peek at New York Defamation Law that has been published by the New York State Bar Journal [82 N.Y.S. Bar J. 58 (Nov./Dec. 2010)],
This article is a primer on the law of defamation in New York. The author discusses the definition of defamation, litigation issues involving pre-complaint disclosure, defenses such as truth and opinion as well as the different types of privileges that may be applicable.
You can download the article from Professor Rubinstein's SSRN page [Publication #18] at no charge, here.
Source: New York State Bar Journal
Mitchell H. Rubinstein, Adjunct Professor at the New York Law School and St. John's University - School of Law and a frequent contributor to NYPPL, has written an article entitled A Peek at New York Defamation Law that has been published by the New York State Bar Journal [82 N.Y.S. Bar J. 58 (Nov./Dec. 2010)],
This article is a primer on the law of defamation in New York. The author discusses the definition of defamation, litigation issues involving pre-complaint disclosure, defenses such as truth and opinion as well as the different types of privileges that may be applicable.
You can download the article from Professor Rubinstein's SSRN page [Publication #18] at no charge, here.
Dec 3, 2010
Lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award
Lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award
Matter of Jordan v Human Resources Admin. City of New York, 2010 NY Slip Op 08575, Decided on November 16, 2010, Appellate Division, Second Department
The Appellate Division ruled that Jerome E. Jordan failed to establish any grounds for vacating the arbitration award, including his argument that “under the circumstances here, the fact that the arbitration hearing was not transcribed did not provide a basis for vacating the arbitration award.”
N.B. In some instances a contract disciplinary procedure set out in a collective bargaining agreement provides that party may elect to have a transcript of the disciplinary arbitration hearing taken. Typically the cost of making a transcript of the hearing is at the requesting party’s own expense and frequently the CBA requires that the party requesting the transcript provide a copy to the arbitrator and the other party.
In contrast to a disciplinary arbitration, where the arbitrator makes the final determination, Civil Service Law §75 not only requires that a transcript of the hearing be made, it also requires that a transcript of the hearing be provided free of charge to the employee.
Further, a hearing officer or panel submits a report and a recommendation as to the penalty to be imposed to the appointing authority and it is responsibility of the appointing authority to conduct an independent review of the facts before rendering its decision.
In Ligreci v Honors, 162 AD2d 1010, the Appellate Division found that the appointing authority erred by making a determination in a disciplinary action before receiving the transcript of the hearing. Further, the courts have held that the failure to include transcript of the disciplinary hearing in a judicial challenge to the disciplinary determination or penalty imposed bars any “meaningful appellate review.”
Similarly, in a disciplinary action pursuant to, and consistent with, §3020-a of the Education Law, 8 NYCRR 82-1.11(c) provides that the Commissioner of Education is to arrange for “the preparation of a hearing transcript by a competent stenographer and shall compensate the stenographer for the cost of preparing the transcript and copies thereof for the hearing officer, each panel member, the department, the employee and the board.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08575.htm
NYPPL
Matter of Jordan v Human Resources Admin. City of New York, 2010 NY Slip Op 08575, Decided on November 16, 2010, Appellate Division, Second Department
The Appellate Division ruled that Jerome E. Jordan failed to establish any grounds for vacating the arbitration award, including his argument that “under the circumstances here, the fact that the arbitration hearing was not transcribed did not provide a basis for vacating the arbitration award.”
N.B. In some instances a contract disciplinary procedure set out in a collective bargaining agreement provides that party may elect to have a transcript of the disciplinary arbitration hearing taken. Typically the cost of making a transcript of the hearing is at the requesting party’s own expense and frequently the CBA requires that the party requesting the transcript provide a copy to the arbitrator and the other party.
In contrast to a disciplinary arbitration, where the arbitrator makes the final determination, Civil Service Law §75 not only requires that a transcript of the hearing be made, it also requires that a transcript of the hearing be provided free of charge to the employee.
Further, a hearing officer or panel submits a report and a recommendation as to the penalty to be imposed to the appointing authority and it is responsibility of the appointing authority to conduct an independent review of the facts before rendering its decision.
In Ligreci v Honors, 162 AD2d 1010, the Appellate Division found that the appointing authority erred by making a determination in a disciplinary action before receiving the transcript of the hearing. Further, the courts have held that the failure to include transcript of the disciplinary hearing in a judicial challenge to the disciplinary determination or penalty imposed bars any “meaningful appellate review.”
Similarly, in a disciplinary action pursuant to, and consistent with, §3020-a of the Education Law, 8 NYCRR 82-1.11(c) provides that the Commissioner of Education is to arrange for “the preparation of a hearing transcript by a competent stenographer and shall compensate the stenographer for the cost of preparing the transcript and copies thereof for the hearing officer, each panel member, the department, the employee and the board.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08575.htm
NYPPL
Disciplinary procedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules
Disciplinary procedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules
Gordon v Town of Queensbury, App. Div., 256 AD2d 784
Michael Gordon was terminated from his position as a motor equipment operator by the Town of Queensbury before he completed his probationary period. He challenged the town’s action, contending that the town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission and thus his termination was made “in bad faith.”
Rule XIV.5 of the Warren County Civil Service Commission requires that “a probationer whose services are to be terminated for unsatisfactory performance receive written notice of such termination at least one week prior thereto.”
Here, however, the Appellate Division decided that “the disciplinary provisions” set out in a collective bargaining agreement negotiated pursuant to the Taylor Law trumped the Commission’s rules. In its analysis of the case, the court pointed out that:
1. A county civil service commission has the authority to promulgate rules for the “conditions and extent of probationary service” which [when filed] have the force and effect of law.
2. “A violation of such rules may be sufficient to trigger a trial on the issue of bad faith.”
3. The former employee “bears the burden of presenting competent proof that his or her dismissal was made in bad faith.”
But, the court said, “it is equally true ... that the disciplinary procedures set forth in a collective bargaining agreement may be substituted for statutory procedures, in which case an employee is ‘entitled to no more procedural protections than those expressly afforded him [or her] under the collective bargaining agreement.”
The Appellate Division said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining agent, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.
Also noted in the opinion was the fact that “it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons absent proof that such discharge was for a constitutionally impermissible reason or in violation of statutory, decisional law, or in bad faith.
Since Gordon “failed to tender proof sufficient to raise a triable issue of fact in this regard,” the court decided that no hearing was required concerning the Town’s motivation in discharging him from the position and dismissed the appeal.
NYPPL
Gordon v Town of Queensbury, App. Div., 256 AD2d 784
Michael Gordon was terminated from his position as a motor equipment operator by the Town of Queensbury before he completed his probationary period. He challenged the town’s action, contending that the town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission and thus his termination was made “in bad faith.”
Rule XIV.5 of the Warren County Civil Service Commission requires that “a probationer whose services are to be terminated for unsatisfactory performance receive written notice of such termination at least one week prior thereto.”
Here, however, the Appellate Division decided that “the disciplinary provisions” set out in a collective bargaining agreement negotiated pursuant to the Taylor Law trumped the Commission’s rules. In its analysis of the case, the court pointed out that:
1. A county civil service commission has the authority to promulgate rules for the “conditions and extent of probationary service” which [when filed] have the force and effect of law.
2. “A violation of such rules may be sufficient to trigger a trial on the issue of bad faith.”
3. The former employee “bears the burden of presenting competent proof that his or her dismissal was made in bad faith.”
But, the court said, “it is equally true ... that the disciplinary procedures set forth in a collective bargaining agreement may be substituted for statutory procedures, in which case an employee is ‘entitled to no more procedural protections than those expressly afforded him [or her] under the collective bargaining agreement.”
The Appellate Division said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining agent, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.
Also noted in the opinion was the fact that “it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons absent proof that such discharge was for a constitutionally impermissible reason or in violation of statutory, decisional law, or in bad faith.
Since Gordon “failed to tender proof sufficient to raise a triable issue of fact in this regard,” the court decided that no hearing was required concerning the Town’s motivation in discharging him from the position and dismissed the appeal.
NYPPL
Police officer's termination for stealing money seized at a police raid ruled an appropriate penalty under the circumstances
Police officer's termination for stealing money seized at a police raid ruled an appropriate penalty under the circumstances
Renna v Safir, App. Div., 256 AD2d 219
In Renna v Safir the Appellate Division again applied the Pell standard – did the penalty imposed shock the conscience of the court.
Mary Renna was dismissed from her position as a New York City police officer after being found guilty of stealing money seized at an illegal gambling location during a police raid.
The court said that Renna’s guilt was supported by substantial evidence, including:
1. The images on a “videotape surveillance of the location,"
2. Renna's failure to report the allegations of corruption made against her in integrity tests conducted by Internal Affairs, and
3. Renna's admittedly false statements concerning the integrity test given in the departmental interview.”
NYPPL
Renna v Safir, App. Div., 256 AD2d 219
In Renna v Safir the Appellate Division again applied the Pell standard – did the penalty imposed shock the conscience of the court.
Mary Renna was dismissed from her position as a New York City police officer after being found guilty of stealing money seized at an illegal gambling location during a police raid.
The court said that Renna’s guilt was supported by substantial evidence, including:
1. The images on a “videotape surveillance of the location,"
2. Renna's failure to report the allegations of corruption made against her in integrity tests conducted by Internal Affairs, and
3. Renna's admittedly false statements concerning the integrity test given in the departmental interview.”
NYPPL
Inability to perform essential duties trumps violation of American with Disabilities Act claims
Inability to perform essential duties trumps violation of American with Disabilities Act claims
Kees v Wallenstein, CA 9, 161 F.3d 1196
A number of correction officers in the State of Washington had been placed on light duty as a result of injuries sustained in the line of duty or as the result of non-work related illness. Their respective physicians had indicated that they should not have direct contact with prison inmates to avoid the possibility of further injury.
When the officers were removed from their positions they sued the Kings County Department of Adult Detention [Arthur Wallenstein, director], contending that their termination violated the Americans with Disabilities Act [ADA], 42 USC. Sections 12101-12213. The State of Washington, representing the county, argued that the officers involved were not “qualified individuals under the ADA” because their inability to have direct inmate contact prevented them from performing the essential functions of the corrections officer job.
The correction officers had informed Wallenstein that their conditions were permanent, and that no reasonable accommodation would allow them to have direct contact with inmates. After determining that direct inmate contact is an essential function of the corrections officer position, OHRM and Wallenstein separated plaintiffs from their jobs as corrections officers. The county had made a settlement offer -- each officer was offered a DAD non-commissioned, support position such as office technician, jail receptionist, or jail aide, at the full corrections officer salary. These employment offers were rejected because the positions required direct inmate contact.
The Circuit Court of Appeals said that in order to prevail on their claim, plaintiffs must establish that:
1. They are disabled within the meaning of the ADA;
2. They are qualified, with or without reasonable accommodation, to perform the essential functions of the job; and
3. The county terminated them because of their disability.
The Ninth U.S. Circuit Court of Appeals in San Francisco sustained the district court’s finding that the officers “are not qualified individuals with disabilities under the ADA.” It said that “no accommodation would allow them to have direct inmate contact, an essential function of the corrections officer position” as “their ability to restrain inmates during an emergency is critical to jail security.”
Another factor considered by the Circuit Court: the controlling collective bargaining agreement indicated that corrections officers are expected to rotate among several positions, most of which involve inmate contact.
NYPPL
Kees v Wallenstein, CA 9, 161 F.3d 1196
A number of correction officers in the State of Washington had been placed on light duty as a result of injuries sustained in the line of duty or as the result of non-work related illness. Their respective physicians had indicated that they should not have direct contact with prison inmates to avoid the possibility of further injury.
When the officers were removed from their positions they sued the Kings County Department of Adult Detention [Arthur Wallenstein, director], contending that their termination violated the Americans with Disabilities Act [ADA], 42 USC. Sections 12101-12213. The State of Washington, representing the county, argued that the officers involved were not “qualified individuals under the ADA” because their inability to have direct inmate contact prevented them from performing the essential functions of the corrections officer job.
The correction officers had informed Wallenstein that their conditions were permanent, and that no reasonable accommodation would allow them to have direct contact with inmates. After determining that direct inmate contact is an essential function of the corrections officer position, OHRM and Wallenstein separated plaintiffs from their jobs as corrections officers. The county had made a settlement offer -- each officer was offered a DAD non-commissioned, support position such as office technician, jail receptionist, or jail aide, at the full corrections officer salary. These employment offers were rejected because the positions required direct inmate contact.
The Circuit Court of Appeals said that in order to prevail on their claim, plaintiffs must establish that:
1. They are disabled within the meaning of the ADA;
2. They are qualified, with or without reasonable accommodation, to perform the essential functions of the job; and
3. The county terminated them because of their disability.
The Ninth U.S. Circuit Court of Appeals in San Francisco sustained the district court’s finding that the officers “are not qualified individuals with disabilities under the ADA.” It said that “no accommodation would allow them to have direct inmate contact, an essential function of the corrections officer position” as “their ability to restrain inmates during an emergency is critical to jail security.”
Another factor considered by the Circuit Court: the controlling collective bargaining agreement indicated that corrections officers are expected to rotate among several positions, most of which involve inmate contact.
NYPPL
Assurance of continued employment disqualifies educator for unemployment insurance benefits
Assurance of continued employment disqualifies educator for unemployment insurance benefits
Romano v Buffalo Bd. of Ed., App. Div., 256 AD2d 845
Cannizzaro v Buffalo Bd. of Ed., App. Div., 256 AD2d 846, Motion to appeal denied, 93 NY2d 815
Aljandari v Buffalo Bd. of Ed., App. Div., 245 AD2d 647
Dixon v Buffalo Bd. of Ed., App. Div., 256 AD2d 1046
A temporary teacher’s eligibility for unemployment insurance benefits upon termination of his or her temporary employment depends on whether or not he or she has been given “a reasonable assurance of continued employment” within the meaning of Section 590.10 of the Labor Law.
The following cases consider a number of different procedural and substantive issues involving claims for such benefits filed by temporary teachers. The basic lesson: employers will be required to provide substantial evidence of such assurances of continued employment to survive administrative and judicial scrutiny of objections to the payment of such benefits.
The Romano Case
Belmaries Romano and a number of other temporary teachers employed by the Buffalo Board of Education during academic 1994-95 were each sent a form letter dated June 9, 1995 indicating that they would be reemployed by the school board during the 1995-96 academic year.
Although initially unemployment insurance claims were denied on the basis of the form letter, an administrative law judge [ALJ] overturned that determination. The Unemployment Insurance Board [Board] affirmed the ALJ’s decision and then denied the school district’s application seeking to reopen the matter.
Although the Appellate Division recognized that “the decision to grant an application to reopen lies within the sound discretion of the Board,” it decided that the Board had abused its discretion when it rejected the school district’s application.
The court said that the school district’s motion for reopening and reconsideration of the issue of whether Romano and the other teachers “received a reasonable assurance of continued employment” as a result of the school district’s sending them a form letter should have been granted by the Board. The matter was remanded to the Board for further action.
The Cannizzaro and Aljandari cases
Both Eva Cannizzaro and Abdulla Aljandari were temporary teachers employed by the Buffalo City School District during the 1994-95 academic year. In June 1995, the school district sent each of them a letter “advising them that they would be reemployed during the then-upcoming 1995-1996 academic year.”
Both were denied unemployment insurance benefits on the grounds that they had received a reasonable notice of continued employment within the meaning of Section 590.10 at the end of the 1994-95 academic year. The Unemployment Insurance Appeals Board granted their applications to reopen and reconsider these denials of benefits.
The Board granted their applications and after reconsidering the matter, adhered to its prior rulings that both Cannizzaro and Aljandari had received reasonable assurances of continued employment.
The Appellate Division rejected their appeals, holding that the record indicated that the Board’s determinations regarding both teachers were supported by substantial evidence.
The Dixon decision
Amber Dixon and 19 other Buffalo City School District temporary teachers applied for unemployment insurance benefits at the end of the 1994-95 academic year. The Board ruled that the 20 teachers had not been provided with “a reasonable assurance of continued employment” for the 1995-96 academic year and approved their applications for unemployment insurance benefits.
The school district appealed, only to have the Appellate Division affirm the Board’s determinations. The court said that with respect to one teacher, Maria Orta, the district “admittedly failed to offer any proof [of such assurance] at the administrative hearing.”
As to the remaining 19 claimants, the Appellate Division set out the following guideline with respect to its considering Board determinations:
It is well settled that the issue of whether a claimant received a reasonable assurance of employment is a factual question for the Board to resolve and such determination, if supported by substantial evidence, will not be disturbed, even if other evidence in the record would support a contrary conclusion.
The Appellate Division said that although the teachers had been sent letters in June 1995 advising them that their services would be continued for the 1995-96 academic year “the Board concluded, in light of the proof adduced at the administrative hearings regarding the respective claimant’s particular employment situations, that the employer did not in fact provide claimants with a reasonable assurance of continued employment.”
The decision notes that 10 claimants worked in mathematics programs and the Board’s findings were supported by “extensive testimony regarding ... planned staff cuts for these departments.” As to the remaining teachers, the court said “it could not say that the Board erred in concluding that the employer failed to provide competent testimony regarding hiring lists and practices for those [other] areas [and thus] failed to demonstrate that it had provided these claimants with a reasonable assurance of employment for the 1995-1996 academic year.”
NYPPL
Romano v Buffalo Bd. of Ed., App. Div., 256 AD2d 845
Cannizzaro v Buffalo Bd. of Ed., App. Div., 256 AD2d 846, Motion to appeal denied, 93 NY2d 815
Aljandari v Buffalo Bd. of Ed., App. Div., 245 AD2d 647
Dixon v Buffalo Bd. of Ed., App. Div., 256 AD2d 1046
A temporary teacher’s eligibility for unemployment insurance benefits upon termination of his or her temporary employment depends on whether or not he or she has been given “a reasonable assurance of continued employment” within the meaning of Section 590.10 of the Labor Law.
The following cases consider a number of different procedural and substantive issues involving claims for such benefits filed by temporary teachers. The basic lesson: employers will be required to provide substantial evidence of such assurances of continued employment to survive administrative and judicial scrutiny of objections to the payment of such benefits.
The Romano Case
Belmaries Romano and a number of other temporary teachers employed by the Buffalo Board of Education during academic 1994-95 were each sent a form letter dated June 9, 1995 indicating that they would be reemployed by the school board during the 1995-96 academic year.
Although initially unemployment insurance claims were denied on the basis of the form letter, an administrative law judge [ALJ] overturned that determination. The Unemployment Insurance Board [Board] affirmed the ALJ’s decision and then denied the school district’s application seeking to reopen the matter.
Although the Appellate Division recognized that “the decision to grant an application to reopen lies within the sound discretion of the Board,” it decided that the Board had abused its discretion when it rejected the school district’s application.
The court said that the school district’s motion for reopening and reconsideration of the issue of whether Romano and the other teachers “received a reasonable assurance of continued employment” as a result of the school district’s sending them a form letter should have been granted by the Board. The matter was remanded to the Board for further action.
The Cannizzaro and Aljandari cases
Both Eva Cannizzaro and Abdulla Aljandari were temporary teachers employed by the Buffalo City School District during the 1994-95 academic year. In June 1995, the school district sent each of them a letter “advising them that they would be reemployed during the then-upcoming 1995-1996 academic year.”
Both were denied unemployment insurance benefits on the grounds that they had received a reasonable notice of continued employment within the meaning of Section 590.10 at the end of the 1994-95 academic year. The Unemployment Insurance Appeals Board granted their applications to reopen and reconsider these denials of benefits.
The Board granted their applications and after reconsidering the matter, adhered to its prior rulings that both Cannizzaro and Aljandari had received reasonable assurances of continued employment.
The Appellate Division rejected their appeals, holding that the record indicated that the Board’s determinations regarding both teachers were supported by substantial evidence.
The Dixon decision
Amber Dixon and 19 other Buffalo City School District temporary teachers applied for unemployment insurance benefits at the end of the 1994-95 academic year. The Board ruled that the 20 teachers had not been provided with “a reasonable assurance of continued employment” for the 1995-96 academic year and approved their applications for unemployment insurance benefits.
The school district appealed, only to have the Appellate Division affirm the Board’s determinations. The court said that with respect to one teacher, Maria Orta, the district “admittedly failed to offer any proof [of such assurance] at the administrative hearing.”
As to the remaining 19 claimants, the Appellate Division set out the following guideline with respect to its considering Board determinations:
It is well settled that the issue of whether a claimant received a reasonable assurance of employment is a factual question for the Board to resolve and such determination, if supported by substantial evidence, will not be disturbed, even if other evidence in the record would support a contrary conclusion.
The Appellate Division said that although the teachers had been sent letters in June 1995 advising them that their services would be continued for the 1995-96 academic year “the Board concluded, in light of the proof adduced at the administrative hearings regarding the respective claimant’s particular employment situations, that the employer did not in fact provide claimants with a reasonable assurance of continued employment.”
The decision notes that 10 claimants worked in mathematics programs and the Board’s findings were supported by “extensive testimony regarding ... planned staff cuts for these departments.” As to the remaining teachers, the court said “it could not say that the Board erred in concluding that the employer failed to provide competent testimony regarding hiring lists and practices for those [other] areas [and thus] failed to demonstrate that it had provided these claimants with a reasonable assurance of employment for the 1995-1996 academic year.”
NYPPL
Dec 2, 2010
Designation of a beneficiary to receive retirement system death benefits
Designation of a beneficiary to receive retirement system death benefits
Estate of Kraut v City of New York, NYS Supreme Court, [not officially reported]
The Kraut case demonstrates the critical importance of a member actually filing a designation of beneficiary form with a public retirement system.
Although the New York City Employees’ Retirement System’s [NYCERS] records indicated that Kraut’s son Steven was his beneficiary, Gloria A. Djaha contended that NYCERS should have paid Kraut’s $268,000 [after taxes] death benefit to her.
Her argument: because Kraut had written “[t]he beneficiary whom I would nominate to receive the benefit payable after my death ... is my Financee [sic] ... is Gloria Anne Djaha on his retirement application form.”
But since Kraut never filed a formal Designation of Beneficiary form naming Djaha as his beneficiary, the court ruled that the son was Kraut’s lawful beneficiary.
Estate of Kraut v City of New York, NYS Supreme Court, [not officially reported]
The Kraut case demonstrates the critical importance of a member actually filing a designation of beneficiary form with a public retirement system.
Although the New York City Employees’ Retirement System’s [NYCERS] records indicated that Kraut’s son Steven was his beneficiary, Gloria A. Djaha contended that NYCERS should have paid Kraut’s $268,000 [after taxes] death benefit to her.
Her argument: because Kraut had written “[t]he beneficiary whom I would nominate to receive the benefit payable after my death ... is my Financee [sic] ... is Gloria Anne Djaha on his retirement application form.”
But since Kraut never filed a formal Designation of Beneficiary form naming Djaha as his beneficiary, the court ruled that the son was Kraut’s lawful beneficiary.
Verizon FMLA settlement may exceed $6 million
Verizon FMLA settlement may exceed $6 million
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Verizon Communications, Inc. settled a class action lawsuit with the California Department of Fair Employment and Housing for up to $6,011,190.00. The suit alleged that between 2007 and 2010 Verizon denied or failed to timely approve class members' requests for leave for their own serious health condition, to care for a family member with a serious health condition, or to bond with a child.
The suit was brought under California's version of the FMLA, which is very similar to the federal Family and Medical Leave Act.
Verizon also agreed to review and revise its leave policies and procedures, and to train all California managers, supervisors and human resource personnel on legally compliant CFMLA procedures. Verizon did not admit to any wrongdoing in the settlement.
http://www.centralvalleybusinesstimes.com/templates/print.cfm?ID=16984
Mr. Bosland Comments: The settlement undoubtedly does not include Verizon's time and expense in defending the suit, which likely added another million dollars to the total tab.
Like the California FMLA, the federal FMLA allows aggrieved employees to file class action lawsuits for violation of their FMLA rights. Employers would be well-advised to continually monitor their leave policies to ensure they remain in compliance with ever-changing FMLA laws. As evidenced by Verizon, failure to do so may result in very expensive and time consuming litigation.
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Verizon Communications, Inc. settled a class action lawsuit with the California Department of Fair Employment and Housing for up to $6,011,190.00. The suit alleged that between 2007 and 2010 Verizon denied or failed to timely approve class members' requests for leave for their own serious health condition, to care for a family member with a serious health condition, or to bond with a child.
The suit was brought under California's version of the FMLA, which is very similar to the federal Family and Medical Leave Act.
Verizon also agreed to review and revise its leave policies and procedures, and to train all California managers, supervisors and human resource personnel on legally compliant CFMLA procedures. Verizon did not admit to any wrongdoing in the settlement.
http://www.centralvalleybusinesstimes.com/templates/print.cfm?ID=16984
Mr. Bosland Comments: The settlement undoubtedly does not include Verizon's time and expense in defending the suit, which likely added another million dollars to the total tab.
Like the California FMLA, the federal FMLA allows aggrieved employees to file class action lawsuits for violation of their FMLA rights. Employers would be well-advised to continually monitor their leave policies to ensure they remain in compliance with ever-changing FMLA laws. As evidenced by Verizon, failure to do so may result in very expensive and time consuming litigation.
Collective bargaining agreement requires village to reimburse its retirees participating in its health insurance plan their Medicare premiums
Collective bargaining agreement requires village to reimburse its retirees participating in its health insurance plan their Medicare premiums
Millington v Village of S. Glens Falls, 30 Misc 3d 405
Marvin Millington and the class he represents are retired employees of Village of South Glens Falls and prior to their respective retirements, were members of a collective bargaining unit represented by the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO.
Effective April 1, 2007 the Village terminated its practice of reimbursing all qualifying Village retirees the cost of their Medicaid Part B premium. Millington, contending that the Village’s action violated the collective bargaining agreements between the Village and CSEA, sued seeking a court order directing the Village reimburse all eligible retirees for such premiums in full.
The Village, on the other hand, contended that it is required to pay either a retiree's medical health insurance premium or Medicare Part B premium, but not both and that it neither violated the law nor the collective bargaining agreement when it terminated its prior practice of paying both premiums.
The Village's private medical insurance plan, Empire Blue Cross, requires every participant in the plan at age 65 to sign up for Medicare Part B as a condition to continued coverage. The Village directly paid the Empire Blue Cross premium while the Medicare Part B premium was deducted from the retiree's Social Security benefit and then the Village reimbursed the employee for that premium.*
Although the Village, said the court, was not required to provide health insurance benefits to a retired employee absent an enforceable contractual obligation to do so, here Judge Nolan said “the salient issue is whether the word "or" in the collective bargaining agreements supports, as a matter of law, the Village's interpretation.” He found that it did not, noting that “While the efforts of the Village to reduce costs are praiseworthy, its interpretation of the word "or" in its disjunctive sense does not square with the rest of the language of the most recent contract in force since 1995.”
The court found that when the medical insurance provisions in the agreements are read as a whole, the retirees were contractually entitled to receive continued coverage under the Village's medical insurance plan with the Village to pay 100% of the qualifying retiree's medical insurance premiums. Accordingly, said Judge Nolan, the Village was responsible to pay 100% of the cost of health insurance for any and all retired Village employees hired before June 1, 1995 including such retirees' Medicare Part B premium.
Further, said the court, Millington and all members of the class he represents were to be reimbursed by the Village “for any and all Medicare Part B premiums which they have individually paid since April 1, 2007, with statutory interest….”
* See Civil Service Law §167-a, reimbursement for Medicare premium charges, with respect to political subdivisions of the State that are “participating employers” in the New York State Health Insurance Program [NYSHIP].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20470.htm
NYPPL
Millington v Village of S. Glens Falls, 30 Misc 3d 405
Marvin Millington and the class he represents are retired employees of Village of South Glens Falls and prior to their respective retirements, were members of a collective bargaining unit represented by the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO.
Effective April 1, 2007 the Village terminated its practice of reimbursing all qualifying Village retirees the cost of their Medicaid Part B premium. Millington, contending that the Village’s action violated the collective bargaining agreements between the Village and CSEA, sued seeking a court order directing the Village reimburse all eligible retirees for such premiums in full.
The Village, on the other hand, contended that it is required to pay either a retiree's medical health insurance premium or Medicare Part B premium, but not both and that it neither violated the law nor the collective bargaining agreement when it terminated its prior practice of paying both premiums.
The Village's private medical insurance plan, Empire Blue Cross, requires every participant in the plan at age 65 to sign up for Medicare Part B as a condition to continued coverage. The Village directly paid the Empire Blue Cross premium while the Medicare Part B premium was deducted from the retiree's Social Security benefit and then the Village reimbursed the employee for that premium.*
Although the Village, said the court, was not required to provide health insurance benefits to a retired employee absent an enforceable contractual obligation to do so, here Judge Nolan said “the salient issue is whether the word "or" in the collective bargaining agreements supports, as a matter of law, the Village's interpretation.” He found that it did not, noting that “While the efforts of the Village to reduce costs are praiseworthy, its interpretation of the word "or" in its disjunctive sense does not square with the rest of the language of the most recent contract in force since 1995.”
The court found that when the medical insurance provisions in the agreements are read as a whole, the retirees were contractually entitled to receive continued coverage under the Village's medical insurance plan with the Village to pay 100% of the qualifying retiree's medical insurance premiums. Accordingly, said Judge Nolan, the Village was responsible to pay 100% of the cost of health insurance for any and all retired Village employees hired before June 1, 1995 including such retirees' Medicare Part B premium.
Further, said the court, Millington and all members of the class he represents were to be reimbursed by the Village “for any and all Medicare Part B premiums which they have individually paid since April 1, 2007, with statutory interest….”
* See Civil Service Law §167-a, reimbursement for Medicare premium charges, with respect to political subdivisions of the State that are “participating employers” in the New York State Health Insurance Program [NYSHIP].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20470.htm
NYPPL
Termination pay and other compensation paid in anticipation of an employee’s retirement excluded in determining the individual’s final average salary
Termination pay and other compensation paid in anticipation of an employee’s retirement excluded in determining the individual’s final average salary
Matter of Thompson v New York State Teachers' Retirement Sys., 2010 NY Slip Op 08670, November 24, 2010, Appellate Division, Third Department
James R. Thompson was employed as a principal in the LeRoy Central School District. In accordance with the relevant collective bargaining agreement between the school district and the LeRoy Administrators' Association, Thompson was to receive 3.5% annual pay increases through the 2005-2006 school year.
The CBA also offered a retirement incentive wherein an administrator who retired immediately after becoming eligible to do so without penalty would receive a lump-sum payment of $20,750.
Although Thompson would have qualified for the incentive had he retired during the 2004-2005 school year, continued in his position. However, the school district and association executed a memorandum of understanding in 2005 that granted large annual raises to Thompson and another administrator nearing retirement age in the 2005-2006 and 2006-2007 school years.
When Thompson retired in 2007 retirement, the New York State Teachers’ Retirement System excluded his 2005-2006 and 2006-2007 salary increases when calculating his retirement benefit. Thompson sued but Supreme Court dismissed his petition.
The Appellate Division affirmed Supreme Court’s ruling, holding that NYSTRS had “appropriately calculated his final average salary using ‘the average regular compensation earned . . . during the three years of actual service immediately preceding his date of retirement.’”
The court explained that in order to prevent the artificial inflation of a member’s final average salary in determining the individual’s retirement allowance, Education Law §501 [11] [b], (see also 21 NYCRR 5001.1 [d]; 5003.1 [a]) requires NYSTRS to exclude any form of termination pay or compensation otherwise paid in anticipation of retirement.
As the 2005 memorandum of understanding stated that it was intended to "provide administrators with an incentive to continue [working] beyond retirement eligibility," and granted exceptional salary increases to Thompson [and other school administrators], the Appellate Division held that NYSTRS “rationally concluded from the above evidence that the disproportionate increases in his salary were made in anticipation of retirement.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08670.htm
NYPPL
Matter of Thompson v New York State Teachers' Retirement Sys., 2010 NY Slip Op 08670, November 24, 2010, Appellate Division, Third Department
James R. Thompson was employed as a principal in the LeRoy Central School District. In accordance with the relevant collective bargaining agreement between the school district and the LeRoy Administrators' Association, Thompson was to receive 3.5% annual pay increases through the 2005-2006 school year.
The CBA also offered a retirement incentive wherein an administrator who retired immediately after becoming eligible to do so without penalty would receive a lump-sum payment of $20,750.
Although Thompson would have qualified for the incentive had he retired during the 2004-2005 school year, continued in his position. However, the school district and association executed a memorandum of understanding in 2005 that granted large annual raises to Thompson and another administrator nearing retirement age in the 2005-2006 and 2006-2007 school years.
When Thompson retired in 2007 retirement, the New York State Teachers’ Retirement System excluded his 2005-2006 and 2006-2007 salary increases when calculating his retirement benefit. Thompson sued but Supreme Court dismissed his petition.
The Appellate Division affirmed Supreme Court’s ruling, holding that NYSTRS had “appropriately calculated his final average salary using ‘the average regular compensation earned . . . during the three years of actual service immediately preceding his date of retirement.’”
The court explained that in order to prevent the artificial inflation of a member’s final average salary in determining the individual’s retirement allowance, Education Law §501 [11] [b], (see also 21 NYCRR 5001.1 [d]; 5003.1 [a]) requires NYSTRS to exclude any form of termination pay or compensation otherwise paid in anticipation of retirement.
As the 2005 memorandum of understanding stated that it was intended to "provide administrators with an incentive to continue [working] beyond retirement eligibility," and granted exceptional salary increases to Thompson [and other school administrators], the Appellate Division held that NYSTRS “rationally concluded from the above evidence that the disproportionate increases in his salary were made in anticipation of retirement.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08670.htm
NYPPL
Employee terminated after failing random drug test
Employee terminated after failing random drug test
Danese v NYC Transit Authority, App. Div., 256 AD2d 464, Motion for leave to appeal denied, 93 NY2d 811
In this appeal from administrative discipline cases involving a police officer’s failing a random drug test, the Appellate Division panels ruled that dismissal was not too harsh a penalty to impose after being found guilty of the offense.
New York City Transit Police Officer Salvatore Danese, tested positive for cocaine in a random drug test.
An administrative law judge found Danese guilty of “certain enumerated charges.” The penalty imposed by the Authority: termination.
Danese appealed, challenging the Authority’s determination and the penalty imposed. The Appellate Division said that dismissal under the circumstances “was not so disproportionate to the offense as to be shocking to one’s sense of fairness,” applying the so-called Pell standard [Pell v Board of Education, 34 NY2D 222].
NYPPL
Danese v NYC Transit Authority, App. Div., 256 AD2d 464, Motion for leave to appeal denied, 93 NY2d 811
In this appeal from administrative discipline cases involving a police officer’s failing a random drug test, the Appellate Division panels ruled that dismissal was not too harsh a penalty to impose after being found guilty of the offense.
New York City Transit Police Officer Salvatore Danese, tested positive for cocaine in a random drug test.
An administrative law judge found Danese guilty of “certain enumerated charges.” The penalty imposed by the Authority: termination.
Danese appealed, challenging the Authority’s determination and the penalty imposed. The Appellate Division said that dismissal under the circumstances “was not so disproportionate to the offense as to be shocking to one’s sense of fairness,” applying the so-called Pell standard [Pell v Board of Education, 34 NY2D 222].
NYPPL
Employment status as an employee determines an employer liability
Employment status as an employee determines an employer liability
Rudder v City of New York, Appellate Division, 254 AD2d 115
There is a saying that a police officer is “always on duty.” While there is a great deal of truth in that exaggeration, it does not follow that the police officer’s employer is liable for all off-duty acts or omissions by the officer. The Rudder case shows that the employer is liable only for off-duty acts involving the performance of official duties.
Rudder was involved in an automobile accident with Scott V. Thompson, an off-duty New York City police officer. Thompson had been driving to the office of the Police Surgeon “for an unscheduled visit” when the accident occurred.
Thompson was driving a vehicle owned by another officer, and that vehicle was uninsured, unregistered and uninspected at the time of the accident. In addition, Thompson’s driver’s license had been suspended.
Rudder sued the City of New York on the theory that the city was liable for Thompson’s actions under the doctrine of respondeat superior (“let the master answer”). Rudder argued that a police officer “is always on duty” and Thompson’s trip to the police surgeon’s office constituted “official business.”
After a State Supreme Court judge disagreed and dismissed the city as a party in the action, Rudder appealed to the Appellate Division.
The Appellate Division said that “given this set of circumstances ... Thompson had not during the relevant time frame been acting in the course of his employment” as a police officer. It sustained the lower court’s determination severing the City of New York as a respondent in the lawsuit.
If the court had declared that Thompson had been acting in the scope of his employment, the city would have faced significant legal bills. Typically, a public employer is required to provide for the defense and indemnification of its officers and employees held liable in lawsuits involving the performance of, or their failure to perform, their official duties.
A similar case was Sanchez v NYC Transit Authority, 254 AD2d 345. Christopher Huwer, an off-duty Transit Authority police officer, was involved in an altercation in the course of a traffic dispute. The Appellate Division rejected Huwer’s demand that the Transit Authority provide for his defense and indemnification as mandated by Section 18 of the Public Officers Law.
The Appellate Division said that the record supported the “corporation counsel’s conclusion that the altercation underlying [Sanchez’s] action was personal in nature, and that [Huwer] was not acting within the scope of his employment.”
It is worth noting that a different rationale is applied when considering off-duty misconduct by law enforcement personnel for the purposes of disciplinary action as opposed to employer liability.
Employers may discipline officers for off-duty misconduct, even if remote from their official duties, if the action brings disrepute upon the employer. For instance, a New York City firefighter was fired after he participated in a September 7, 1998 Labor Day parade was held in the Broad Channel neighborhood of Queens County. As part of the parade, a float appeared that was said to have been intended as a “parody” of African-Americans. Participants rode on a decorated flatbed truck wearing ‘black face’ and wigs.” Steiner unsuccessfully claimed he was unable to get a fair hearing because Mayor Rudy Guiliani had publicly vowed to fire any police or fire officers who were on the float. [Eagan v Von Essen, 260 AD2d 479].*
Similarly, the Appellate Division upheld the imposition of a 20-day suspension without pay when the police commissioner found that a police officer, while off-duty, “wrongfully and without just cause, harassed and threatened one of his neighbors” [Hogan v Bartton, Appellate Division, 254 AD2d 110].
Police officer Richard Hogan “warned the neighbor to ‘watch her back’ and [to have] used racial slurs while in a tirade....” The court said the penalty imposed did not “shock its sense of fairness,” and sustained the commissioner’s determination.
* See Von Essen v NYC Civil Service Commission, 3 A.D.3d 115 and Von Essen v. New York City Civil Service Com'n, 4 N.Y.3d 220, concerning other, jurisdictional, aspects of the underlying disciplinary action.
NYPPL
Rudder v City of New York, Appellate Division, 254 AD2d 115
There is a saying that a police officer is “always on duty.” While there is a great deal of truth in that exaggeration, it does not follow that the police officer’s employer is liable for all off-duty acts or omissions by the officer. The Rudder case shows that the employer is liable only for off-duty acts involving the performance of official duties.
Rudder was involved in an automobile accident with Scott V. Thompson, an off-duty New York City police officer. Thompson had been driving to the office of the Police Surgeon “for an unscheduled visit” when the accident occurred.
Thompson was driving a vehicle owned by another officer, and that vehicle was uninsured, unregistered and uninspected at the time of the accident. In addition, Thompson’s driver’s license had been suspended.
Rudder sued the City of New York on the theory that the city was liable for Thompson’s actions under the doctrine of respondeat superior (“let the master answer”). Rudder argued that a police officer “is always on duty” and Thompson’s trip to the police surgeon’s office constituted “official business.”
After a State Supreme Court judge disagreed and dismissed the city as a party in the action, Rudder appealed to the Appellate Division.
The Appellate Division said that “given this set of circumstances ... Thompson had not during the relevant time frame been acting in the course of his employment” as a police officer. It sustained the lower court’s determination severing the City of New York as a respondent in the lawsuit.
If the court had declared that Thompson had been acting in the scope of his employment, the city would have faced significant legal bills. Typically, a public employer is required to provide for the defense and indemnification of its officers and employees held liable in lawsuits involving the performance of, or their failure to perform, their official duties.
A similar case was Sanchez v NYC Transit Authority, 254 AD2d 345. Christopher Huwer, an off-duty Transit Authority police officer, was involved in an altercation in the course of a traffic dispute. The Appellate Division rejected Huwer’s demand that the Transit Authority provide for his defense and indemnification as mandated by Section 18 of the Public Officers Law.
The Appellate Division said that the record supported the “corporation counsel’s conclusion that the altercation underlying [Sanchez’s] action was personal in nature, and that [Huwer] was not acting within the scope of his employment.”
It is worth noting that a different rationale is applied when considering off-duty misconduct by law enforcement personnel for the purposes of disciplinary action as opposed to employer liability.
Employers may discipline officers for off-duty misconduct, even if remote from their official duties, if the action brings disrepute upon the employer. For instance, a New York City firefighter was fired after he participated in a September 7, 1998 Labor Day parade was held in the Broad Channel neighborhood of Queens County. As part of the parade, a float appeared that was said to have been intended as a “parody” of African-Americans. Participants rode on a decorated flatbed truck wearing ‘black face’ and wigs.” Steiner unsuccessfully claimed he was unable to get a fair hearing because Mayor Rudy Guiliani had publicly vowed to fire any police or fire officers who were on the float. [Eagan v Von Essen, 260 AD2d 479].*
Similarly, the Appellate Division upheld the imposition of a 20-day suspension without pay when the police commissioner found that a police officer, while off-duty, “wrongfully and without just cause, harassed and threatened one of his neighbors” [Hogan v Bartton, Appellate Division, 254 AD2d 110].
Police officer Richard Hogan “warned the neighbor to ‘watch her back’ and [to have] used racial slurs while in a tirade....” The court said the penalty imposed did not “shock its sense of fairness,” and sustained the commissioner’s determination.
* See Von Essen v NYC Civil Service Commission, 3 A.D.3d 115 and Von Essen v. New York City Civil Service Com'n, 4 N.Y.3d 220, concerning other, jurisdictional, aspects of the underlying disciplinary action.
NYPPL
Employment status as an employee determines an employer liability
Employment status as an employee determines an employer liability
Rudder v City of New York, Appellate Division, 254 AD2d 115
There is a saying that a police officer is “always on duty.” While there is a great deal of truth in that exaggeration, it does not follow that the police officer’s employer is liable for all off-duty acts or omissions by the officer. The Rudder case shows that the employer is liable only for off-duty acts involving the performance of official duties.
Rudder was involved in an automobile accident with Scott V. Thompson, an off-duty New York City police officer. Thompson had been driving to the office of the Police Surgeon “for an unscheduled visit” when the accident occurred.
Thompson was driving a vehicle owned by another officer, and that vehicle was uninsured, unregistered and uninspected at the time of the accident. In addition, Thompson’s driver’s license had been suspended.
Rudder sued the City of New York on the theory that the city was liable for Thompson’s actions under the doctrine of respondeat superior (“let the master answer”). Rudder argued that a police officer “is always on duty” and Thompson’s trip to the police surgeon’s office constituted “official business.”
After a State Supreme Court judge disagreed and dismissed the city as a party in the action, Rudder appealed to the Appellate Division.
The Appellate Division said that “given this set of circumstances ... Thompson had not during the relevant time frame been acting in the course of his employment” as a police officer. It sustained the lower court’s determination severing the City of New York as a respondent in the lawsuit.
If the court had declared that Thompson had been acting in the scope of his employment, the city would have faced significant legal bills. Typically, a public employer is required to provide for the defense and indemnification of its officers and employees held liable in lawsuits involving the performance of, or their failure to perform, their official duties.
A similar case was Sanchez v NYC Transit Authority, 254 AD2d 345. Christopher Huwer, an off-duty Transit Authority police officer, was involved in an altercation in the course of a traffic dispute. The Appellate Division rejected Huwer’s demand that the Transit Authority provide for his defense and indemnification as mandated by Section 18 of the Public Officers Law.
The Appellate Division said that the record supported the “corporation counsel’s conclusion that the altercation underlying [Sanchez’s] action was personal in nature, and that [Huwer] was not acting within the scope of his employment.”
It is worth noting that a different rationale is applied when considering off-duty misconduct by law enforcement personnel for the purposes of disciplinary action as opposed to employer liability.
Employers may discipline officers for off-duty misconduct, even if remote from their official duties, if the action brings disrepute upon the employer. For instance, a New York City firefighter was fired after he participated in a September 7, 1998 Labor Day parade was held in the Broad Channel neighborhood of Queens County. As part of the parade, a float appeared that was said to have been intended as a “parody” of African-Americans. Participants rode on a decorated flatbed truck wearing ‘black face’ and wigs.” The firefighter unsuccessfully claimed he was unable to get a fair hearing because Mayor Rudy Guiliani had publicly vowed to fire any police or fire officers who were on the float..*
Similarly, the Appellate Division upheld the imposition of a 20-day suspension without pay when the police commissioner found that a police officer, while off-duty, “wrongfully and without just cause, harassed and threatened one of his neighbors” [Hogan v Bartton, Appellate Division, 254 AD2d 110].
Police officer Richard Hogan “warned the neighbor to ‘watch her back’ and [to have] used racial slurs while in a tirade....” The court said the penalty imposed did not “shock its sense of fairness,” and sustained the commissioner’s determination.
* See Von Essen v NYC Civil Service Commission, 3 A.D.3d 115 and Von Essen v. New York City Civil Service Com'n, 4 N.Y.3d 220, concerning other, jurisdictional, aspects of the underlying disciplinary action.
NYPPL
Rudder v City of New York, Appellate Division, 254 AD2d 115
There is a saying that a police officer is “always on duty.” While there is a great deal of truth in that exaggeration, it does not follow that the police officer’s employer is liable for all off-duty acts or omissions by the officer. The Rudder case shows that the employer is liable only for off-duty acts involving the performance of official duties.
Rudder was involved in an automobile accident with Scott V. Thompson, an off-duty New York City police officer. Thompson had been driving to the office of the Police Surgeon “for an unscheduled visit” when the accident occurred.
Thompson was driving a vehicle owned by another officer, and that vehicle was uninsured, unregistered and uninspected at the time of the accident. In addition, Thompson’s driver’s license had been suspended.
Rudder sued the City of New York on the theory that the city was liable for Thompson’s actions under the doctrine of respondeat superior (“let the master answer”). Rudder argued that a police officer “is always on duty” and Thompson’s trip to the police surgeon’s office constituted “official business.”
After a State Supreme Court judge disagreed and dismissed the city as a party in the action, Rudder appealed to the Appellate Division.
The Appellate Division said that “given this set of circumstances ... Thompson had not during the relevant time frame been acting in the course of his employment” as a police officer. It sustained the lower court’s determination severing the City of New York as a respondent in the lawsuit.
If the court had declared that Thompson had been acting in the scope of his employment, the city would have faced significant legal bills. Typically, a public employer is required to provide for the defense and indemnification of its officers and employees held liable in lawsuits involving the performance of, or their failure to perform, their official duties.
A similar case was Sanchez v NYC Transit Authority, 254 AD2d 345. Christopher Huwer, an off-duty Transit Authority police officer, was involved in an altercation in the course of a traffic dispute. The Appellate Division rejected Huwer’s demand that the Transit Authority provide for his defense and indemnification as mandated by Section 18 of the Public Officers Law.
The Appellate Division said that the record supported the “corporation counsel’s conclusion that the altercation underlying [Sanchez’s] action was personal in nature, and that [Huwer] was not acting within the scope of his employment.”
It is worth noting that a different rationale is applied when considering off-duty misconduct by law enforcement personnel for the purposes of disciplinary action as opposed to employer liability.
Employers may discipline officers for off-duty misconduct, even if remote from their official duties, if the action brings disrepute upon the employer. For instance, a New York City firefighter was fired after he participated in a September 7, 1998 Labor Day parade was held in the Broad Channel neighborhood of Queens County. As part of the parade, a float appeared that was said to have been intended as a “parody” of African-Americans. Participants rode on a decorated flatbed truck wearing ‘black face’ and wigs.” The firefighter unsuccessfully claimed he was unable to get a fair hearing because Mayor Rudy Guiliani had publicly vowed to fire any police or fire officers who were on the float..*
Similarly, the Appellate Division upheld the imposition of a 20-day suspension without pay when the police commissioner found that a police officer, while off-duty, “wrongfully and without just cause, harassed and threatened one of his neighbors” [Hogan v Bartton, Appellate Division, 254 AD2d 110].
Police officer Richard Hogan “warned the neighbor to ‘watch her back’ and [to have] used racial slurs while in a tirade....” The court said the penalty imposed did not “shock its sense of fairness,” and sustained the commissioner’s determination.
* See Von Essen v NYC Civil Service Commission, 3 A.D.3d 115 and Von Essen v. New York City Civil Service Com'n, 4 N.Y.3d 220, concerning other, jurisdictional, aspects of the underlying disciplinary action.
NYPPL
Diversity education effort results in allegations of “intentional infliction of emotional distress”
Diversity education effort results in allegations of “intentional infliction of emotional distress”
Graham v Guilderland CSD, App. Div., 256 AD2d 863, Motion for leave to appeal denied, 93 NY2d 803
Teacher John Birchler found himself named as a defendant in a lawsuit when the parents of a black student objected to some of the comments he made during a class discussion concerning “Homosexual Awareness.”
According to the decision by the Appellate Division:
While discussing a “Homosexual Awareness Assembly” that had been held the previous day, a student asked [Birchler] “Why not call them Faggots? That’s what they are!” In response [Birchler] pointed to Elizabeth, the only African American in the classroom and stated, “Why not call Liz a ‘nigger’ because that’s what she is? Liz, why not tell us what it feels like to be called a ‘nigger.’“
Elizabeth and her parents sued the district and Birchler, claiming [Elizabeth was the victim of the] “intentional infliction of emotional distress.” They contended that because Elizabeth was the only African American in the class Birchler had a “heightened duty, as a teacher and role model, to refrain from engaging in what they describe as a ‘vicious racial attack’ ... in front of her peers.”
The Appellate Division sustained a lower court’s dismissal of the Graham’s complaint, finding that the allegations “did not rise to the level of ‘extreme and outrageous conduct’ necessary to sustain such a claim.” The court explained its ruling by indicating that Birchler’s remarks, “considered in their entirety, were plainly intended to convey his strong disapproval of such epithets by exemplifying -- perhaps, too effectively -- the pain they can cause.”
One member of the appellate panel, Judge Cardona, dissented. He said that the Graham’s complaint should not have been dismissed by the trial court, noting that “although it does not appear that [Birchler] deliberately intended to cause harm to [Elizabeth], his disregard and invasion of her feelings and emotions was at the very least reckless.” The lesson here is that attempting to address cultural diversity issues in the classroom has the potential for polarizing the community and prompting legal action. Unfortunately, there is no simple formula that can be applied that will insulate educators from criticism or litigation in such situations.
As Judge Cardona noted in his dissenting opinion, “although I agree with the majority that an open exchange of ideas should be encouraged in a classroom setting, that goal must yield to the protection of one’s emotional well-being.” According to Judge Cardona, “the fact that [Birchler’s] remarks were used in the context of a classroom discussion allegedly for the purpose of spurring conversation about prejudice does not render them less objectionable.”
NYPPL
Graham v Guilderland CSD, App. Div., 256 AD2d 863, Motion for leave to appeal denied, 93 NY2d 803
Teacher John Birchler found himself named as a defendant in a lawsuit when the parents of a black student objected to some of the comments he made during a class discussion concerning “Homosexual Awareness.”
According to the decision by the Appellate Division:
While discussing a “Homosexual Awareness Assembly” that had been held the previous day, a student asked [Birchler] “Why not call them Faggots? That’s what they are!” In response [Birchler] pointed to Elizabeth, the only African American in the classroom and stated, “Why not call Liz a ‘nigger’ because that’s what she is? Liz, why not tell us what it feels like to be called a ‘nigger.’“
Elizabeth and her parents sued the district and Birchler, claiming [Elizabeth was the victim of the] “intentional infliction of emotional distress.” They contended that because Elizabeth was the only African American in the class Birchler had a “heightened duty, as a teacher and role model, to refrain from engaging in what they describe as a ‘vicious racial attack’ ... in front of her peers.”
The Appellate Division sustained a lower court’s dismissal of the Graham’s complaint, finding that the allegations “did not rise to the level of ‘extreme and outrageous conduct’ necessary to sustain such a claim.” The court explained its ruling by indicating that Birchler’s remarks, “considered in their entirety, were plainly intended to convey his strong disapproval of such epithets by exemplifying -- perhaps, too effectively -- the pain they can cause.”
One member of the appellate panel, Judge Cardona, dissented. He said that the Graham’s complaint should not have been dismissed by the trial court, noting that “although it does not appear that [Birchler] deliberately intended to cause harm to [Elizabeth], his disregard and invasion of her feelings and emotions was at the very least reckless.” The lesson here is that attempting to address cultural diversity issues in the classroom has the potential for polarizing the community and prompting legal action. Unfortunately, there is no simple formula that can be applied that will insulate educators from criticism or litigation in such situations.
As Judge Cardona noted in his dissenting opinion, “although I agree with the majority that an open exchange of ideas should be encouraged in a classroom setting, that goal must yield to the protection of one’s emotional well-being.” According to Judge Cardona, “the fact that [Birchler’s] remarks were used in the context of a classroom discussion allegedly for the purpose of spurring conversation about prejudice does not render them less objectionable.”
NYPPL
Dec 1, 2010
Attorneys, Arbitrators, Mediators, Expert Witnesses
Attorneys, Arbitrators, Mediators, Expert Witnesses
. .
NYPPL readers often ask for the name of a professional to handle a personnel, retirement, civil rights or other employment related matter. If you are interested in being listed in NYPPL’s directory of professionals, send an e-mail to publications@nycap.rr.com with the word “Directory” as the subject and the details will be e-mailed back to you.
NYPPL
. .
NYPPL readers often ask for the name of a professional to handle a personnel, retirement, civil rights or other employment related matter. If you are interested in being listed in NYPPL’s directory of professionals, send an e-mail to publications@nycap.rr.com with the word “Directory” as the subject and the details will be e-mailed back to you.
NYPPL
OATH administrative law judge recommends an award of $500 for the de minimis retaliation by supervisor against employee
OATH administrative law judge recommends an award of $500 for the de minimis retaliation by supervisor against employee
NYC Commission on Human Rights, ex rel. Cerullo v Fricione, OATH Index ## . 1865/10 & 1866/10
An alleged violation of New York City’s Human Rights Law was initiated by the New York City Commission on Human Rights (“the Commission”), pursuant to section 8-109(h) of the Administrative Code and section 1-71 of the Commission’s rules, 47 RCNY §1-71(a). Human Rights and heard by OATH Administrative Law Judge Faye Lewis.
Theresa Cerullo and Gregory Cerullo, A husband and wife who worked together on the custodial staff of a public high school brought claims of gender discrimination and retaliation against their supervisor.
ALJ Faye Lewis found that Mrs. Cerullo’s claims of gender discrimination were not proved. Although the supervisor was at times unpleasant, Judge Lewis decided that Mrs. Cerullo failed to prove that he treated men and women differently in the workplace.
However, Mrs. Cerullo proved that respondent took away Mr. Cerullo’s keys to the back room and garage in retaliation for Mr. Cerullo’s complaints about perceived discriminatory treatment against his wife.
Mrs. Cerullo, however, failed to prove that the supervisors retaliated against her husband by decreasing his overtime.
Judge Lewis recommended a $500 damage award for the de minimis retaliation proved by Mrs. Cerullo.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1865.pdf
NYPPL
NYC Commission on Human Rights, ex rel. Cerullo v Fricione, OATH Index ## . 1865/10 & 1866/10
An alleged violation of New York City’s Human Rights Law was initiated by the New York City Commission on Human Rights (“the Commission”), pursuant to section 8-109(h) of the Administrative Code and section 1-71 of the Commission’s rules, 47 RCNY §1-71(a). Human Rights and heard by OATH Administrative Law Judge Faye Lewis.
Theresa Cerullo and Gregory Cerullo, A husband and wife who worked together on the custodial staff of a public high school brought claims of gender discrimination and retaliation against their supervisor.
ALJ Faye Lewis found that Mrs. Cerullo’s claims of gender discrimination were not proved. Although the supervisor was at times unpleasant, Judge Lewis decided that Mrs. Cerullo failed to prove that he treated men and women differently in the workplace.
However, Mrs. Cerullo proved that respondent took away Mr. Cerullo’s keys to the back room and garage in retaliation for Mr. Cerullo’s complaints about perceived discriminatory treatment against his wife.
Mrs. Cerullo, however, failed to prove that the supervisors retaliated against her husband by decreasing his overtime.
Judge Lewis recommended a $500 damage award for the de minimis retaliation proved by Mrs. Cerullo.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1865.pdf
NYPPL
Dismissed probationer required to prove that his or her termination was for an improper reason
Dismissed probationer required to prove that his or her termination was for an improper reason
Matter of Lambert v Kelly, 2010 NY Slip Op 08618, decided on November 23, 2010, Appellate Division, First Department
Yolanda Lambert, a probationary police officer, challenged her termination from her position, alleging it was for an impermissible reason and in an effort to frustrate her receipt of vested interest retirement benefits.
Affirming the Supreme Court Alice Schlesinger’s decision dismissing Lambert’s petition, the Appellate Division said that the basic rules in adjudicating a probationer’s allegation that his or her probationary dismissal was unlawful are:
1. It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation or law; and
2. The burden of proving bad faith is on the employee, and its mere assertion, without supporting evidence, does not satisfy that requirement;
Here, said the Appellate Division, Lambert failed to produce competent proof that she was terminated for an impermissible or unlawful reason. On the contrary, the court pointed out that the record discloses a rational basis for the challenged determination, including:
1. Lambert had violated numerous NYPD regulations, including illegally parking her personal vehicle displayed an expired police parking permit that belong to another individual; and
2. Lambert used her position as an officer to try to get special treatment from the City Marshal's Office when attempting to retrive the illegally parked vehicle after it was impounded.
Finally, the Appellate Division said that there was no evidence that Lambert was dismissed “in order to frustrate her receipt of vested interest retirement benefits.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08618.htm
NYPPL
Matter of Lambert v Kelly, 2010 NY Slip Op 08618, decided on November 23, 2010, Appellate Division, First Department
Yolanda Lambert, a probationary police officer, challenged her termination from her position, alleging it was for an impermissible reason and in an effort to frustrate her receipt of vested interest retirement benefits.
Affirming the Supreme Court Alice Schlesinger’s decision dismissing Lambert’s petition, the Appellate Division said that the basic rules in adjudicating a probationer’s allegation that his or her probationary dismissal was unlawful are:
1. It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation or law; and
2. The burden of proving bad faith is on the employee, and its mere assertion, without supporting evidence, does not satisfy that requirement;
Here, said the Appellate Division, Lambert failed to produce competent proof that she was terminated for an impermissible or unlawful reason. On the contrary, the court pointed out that the record discloses a rational basis for the challenged determination, including:
1. Lambert had violated numerous NYPD regulations, including illegally parking her personal vehicle displayed an expired police parking permit that belong to another individual; and
2. Lambert used her position as an officer to try to get special treatment from the City Marshal's Office when attempting to retrive the illegally parked vehicle after it was impounded.
Finally, the Appellate Division said that there was no evidence that Lambert was dismissed “in order to frustrate her receipt of vested interest retirement benefits.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08618.htm
NYPPL
Use of hearsay testimony in disciplinary actions permitted
Use of hearsay testimony in disciplinary actions permitted
Brinson v Safir, Appellate Division, 255 AD2d 247, Motion for leave to appeal denied, 93 NY2d 805
James Brinson, a New York City police officer, was dismissed after being found guilty of “knowingly and wrongfully associat[ing] with persons know to be engaged in criminal activity.”
The evidence against Brinson consisted of hearsay statements of two informants. The statements of the informants were corroborated by police surveillance. The Appellate Division said that such testimony, together with its corroboration, constituted substantial evidence of the charges filed against Brinson and dismissed his appeal.
Another aspect of the appeal involved Brinson’s being required to submit to a drug test. The Appellate Division said that “corroborated information” supplied by informants provided a “reasonable suspicion” to require Brinson to undergo drug testing.
NYPPL
Brinson v Safir, Appellate Division, 255 AD2d 247, Motion for leave to appeal denied, 93 NY2d 805
James Brinson, a New York City police officer, was dismissed after being found guilty of “knowingly and wrongfully associat[ing] with persons know to be engaged in criminal activity.”
The evidence against Brinson consisted of hearsay statements of two informants. The statements of the informants were corroborated by police surveillance. The Appellate Division said that such testimony, together with its corroboration, constituted substantial evidence of the charges filed against Brinson and dismissed his appeal.
Another aspect of the appeal involved Brinson’s being required to submit to a drug test. The Appellate Division said that “corroborated information” supplied by informants provided a “reasonable suspicion” to require Brinson to undergo drug testing.
NYPPL
Protecting health insurance benefits after retirement
Protecting health insurance benefits after retirement
Rocco v City of Schenectady, App. Div., 252 AD2d 82, Motion for leave to appeal denied, 93 NY2d 1000
[Decided with Andriano v City of Schenectady, motion for leave to appeal denied, 93 NY2d 999]
In McDonald Police Benevolent Association v City of Geneva, 92 NY2d 326, the Court of Appeals ruled that there was no legal impediment to the City of Geneva’s unilateral alteration of “a past practice ... unrelated to any entitlement expressly conferred upon retirees in a collective bargaining agreement.”
The fact that retirees were involved was critical. The decision noted that “where a past practice between a public employer and its current employees is established, involving a mandatory subject of negotiation, the Taylor Law would bar the employer from discontinuing that practice without prior negotiation.”
But for retirees, benefits may be rescinded, even if established by past practice, if the benefits are not codified in a collective bargaining agreement to which the retirees were party, according to the McDonald decision.
Citing that ruling, a majority of an Appellate Division panel ruled in the Rocco and Andriano cases that a lower court was correct in barring the City of Schenectady from unilaterally changing the existing health insurance benefits of retired police officers and firefighters.
The critical difference was that in the Schenectady case the court found that the benefits were protected by the terms of a collective bargaining agreement negotiated pursuant to the Taylor Law.
Since 1969 labor agreements in Schenectady contained identical language providing that the city was to furnish, at its own expense, health insurance for retirees and their dependents “presently in effect for each member of the Department....” The Appellate Division said this meant that “when a member ... retired the coverage to which that individual was entitled [at the time of his or her retirement] remained fixed in time and could not be changed.”
The Appellate Division pointed out that:
1. The contract at issue had a duration of one to two years.
2. Once employees retire they are no longer represented by their union and have no collective bargaining rights under the Taylor Law.
3. Since retirees are not involved in subsequent negotiations, it is logical to assume that the agreement under which they retired was intended to insulate them from losing important insurance rights during subsequent negotiations.
The Court also distinguished the Rocco and Andriano plaintiffs, whose benefits were set out in a Taylor Law agreement, to those involved in the Geneva case. In Geneva, the retiree’s health insurance benefits were provided pursuant to a resolution adopted by the City Council rather than under a collective bargaining agreement.
NYPPL
Rocco v City of Schenectady, App. Div., 252 AD2d 82, Motion for leave to appeal denied, 93 NY2d 1000
[Decided with Andriano v City of Schenectady, motion for leave to appeal denied, 93 NY2d 999]
In McDonald Police Benevolent Association v City of Geneva, 92 NY2d 326, the Court of Appeals ruled that there was no legal impediment to the City of Geneva’s unilateral alteration of “a past practice ... unrelated to any entitlement expressly conferred upon retirees in a collective bargaining agreement.”
The fact that retirees were involved was critical. The decision noted that “where a past practice between a public employer and its current employees is established, involving a mandatory subject of negotiation, the Taylor Law would bar the employer from discontinuing that practice without prior negotiation.”
But for retirees, benefits may be rescinded, even if established by past practice, if the benefits are not codified in a collective bargaining agreement to which the retirees were party, according to the McDonald decision.
Citing that ruling, a majority of an Appellate Division panel ruled in the Rocco and Andriano cases that a lower court was correct in barring the City of Schenectady from unilaterally changing the existing health insurance benefits of retired police officers and firefighters.
The critical difference was that in the Schenectady case the court found that the benefits were protected by the terms of a collective bargaining agreement negotiated pursuant to the Taylor Law.
Since 1969 labor agreements in Schenectady contained identical language providing that the city was to furnish, at its own expense, health insurance for retirees and their dependents “presently in effect for each member of the Department....” The Appellate Division said this meant that “when a member ... retired the coverage to which that individual was entitled [at the time of his or her retirement] remained fixed in time and could not be changed.”
The Appellate Division pointed out that:
1. The contract at issue had a duration of one to two years.
2. Once employees retire they are no longer represented by their union and have no collective bargaining rights under the Taylor Law.
3. Since retirees are not involved in subsequent negotiations, it is logical to assume that the agreement under which they retired was intended to insulate them from losing important insurance rights during subsequent negotiations.
The Court also distinguished the Rocco and Andriano plaintiffs, whose benefits were set out in a Taylor Law agreement, to those involved in the Geneva case. In Geneva, the retiree’s health insurance benefits were provided pursuant to a resolution adopted by the City Council rather than under a collective bargaining agreement.
NYPPL
Nov 30, 2010
Willful dishonesty in responding to superior’s question justifies dismissal of the employee
Willful dishonesty in responding to superior’s question justifies dismissal of the employee
Department of Correction v Katanic, OATH #2117/10
Jason Katanic, a NYC Department of Corrections correction officer, trained other officers in gun safety and marksmanship.
The Department charged Katanic with the possession of “five undocumented handguns and three undocumented rifles, including two rifles that were illegal assault weapons.”
OATH Administrative Law Judge Joan R. Salzman found that Katanic had failed to obtain the required permission from the Department before he purchased the weapons as required by Department Directives.*
Judge Salzman also found that Katanic “was willfully dishonest” on multiple occasions when questioned by his superiors about his possession of those firearms.
Judge Salzman recommended that, despite Katanic’s 13-year record with the Department, his dishonesty and breach of security and trust warranted his being terminated from his position.
* Directive 4511R-A provides that a correction officer was required to file the necessary form to apply for permission from the Commanding Officer to purchase a personal handgun and that “A separate application to/and approval from the member’s Commanding Officer must precede each purchase of an additional firearm.”
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2117.pdf
NYPPL
Department of Correction v Katanic, OATH #2117/10
Jason Katanic, a NYC Department of Corrections correction officer, trained other officers in gun safety and marksmanship.
The Department charged Katanic with the possession of “five undocumented handguns and three undocumented rifles, including two rifles that were illegal assault weapons.”
OATH Administrative Law Judge Joan R. Salzman found that Katanic had failed to obtain the required permission from the Department before he purchased the weapons as required by Department Directives.*
Judge Salzman also found that Katanic “was willfully dishonest” on multiple occasions when questioned by his superiors about his possession of those firearms.
Judge Salzman recommended that, despite Katanic’s 13-year record with the Department, his dishonesty and breach of security and trust warranted his being terminated from his position.
* Directive 4511R-A provides that a correction officer was required to file the necessary form to apply for permission from the Commanding Officer to purchase a personal handgun and that “A separate application to/and approval from the member’s Commanding Officer must precede each purchase of an additional firearm.”
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2117.pdf
NYPPL
Police officer terminated after failing to report the loss of evidence
Police officer terminated after failing to report the loss of evidence
Bonifacio v Safir, App. Div., First Dept., 277 AD2d 8, Motion for leave to appeal denied, 96 NY2d 706
The Appellate Division sustained the dismissal of New York City police officer George Bonifacio after he was found guilty of disciplinary charges filed against him.
One charges involved Bonifacio’s actions after he had been reprimanded for having failed to respond to a radio call. According to the findings of the hearing officer, about an hour after he was reprimanded, Bonifacio approached his sergeant to discuss the matter and was discourteous to the point of being threatening. The fact that Bonifacio was upset at the time did not have any mitigating impact on the hearing officer’s consideration of the episode.
Another element in the disciplinary proceeding: Bonifacio also admitted he had failed to safeguard a firearm that he and his partner had recovered at a crime scene. Bonifacio also admitted that he had neglected to note the recovery of the weapon in his log.
Bonifacio attempted to explain his leaving the gun behind at the scene as a mistake that he wanted to cover up out of embarrassment.
The Appellate Division agreed with the hearing officer’s rejection of this excuse, concurring with the hearing officer’s finding that “it was extraordinarily irresponsible of [Bonifacio] not to tell any of his superiors about having left the gun behind, with the result that evidence of a crime was lost and an automatic weapon remains in the public domain.”
The court said that the penalty of dismissal does not shock its sense of fairness citing the Pell doctrine [Pell v Board of Education, 34 NY2d 222].
NYPPL
Bonifacio v Safir, App. Div., First Dept., 277 AD2d 8, Motion for leave to appeal denied, 96 NY2d 706
The Appellate Division sustained the dismissal of New York City police officer George Bonifacio after he was found guilty of disciplinary charges filed against him.
One charges involved Bonifacio’s actions after he had been reprimanded for having failed to respond to a radio call. According to the findings of the hearing officer, about an hour after he was reprimanded, Bonifacio approached his sergeant to discuss the matter and was discourteous to the point of being threatening. The fact that Bonifacio was upset at the time did not have any mitigating impact on the hearing officer’s consideration of the episode.
Another element in the disciplinary proceeding: Bonifacio also admitted he had failed to safeguard a firearm that he and his partner had recovered at a crime scene. Bonifacio also admitted that he had neglected to note the recovery of the weapon in his log.
Bonifacio attempted to explain his leaving the gun behind at the scene as a mistake that he wanted to cover up out of embarrassment.
The Appellate Division agreed with the hearing officer’s rejection of this excuse, concurring with the hearing officer’s finding that “it was extraordinarily irresponsible of [Bonifacio] not to tell any of his superiors about having left the gun behind, with the result that evidence of a crime was lost and an automatic weapon remains in the public domain.”
The court said that the penalty of dismissal does not shock its sense of fairness citing the Pell doctrine [Pell v Board of Education, 34 NY2d 222].
NYPPL
Tests applied in cases alleging dismissal from public service because of political affiliation
Tests applied in cases alleging dismissal from public service because of political affiliation
Bavaro and Hogan v Pataki, CA2, 130 F.3d 46
The Bavaro and Hogan v. Pataki case involved attorneys removed from their respective exempt class positions* in the New York State Health Department following the election of a new governor. There was no question that both were terminated because of their political affiliation.
The decision by the Second Circuit U.S. Court of Appeals is important as it sets out the various elements that the Second Circuit [New York State is within the Second Circuit’s jurisdiction] considers when deciding if an individual can claim First Amendment protection if he or she is terminated from the public service because of his or her political affiliation, or the lack of political affiliation.
Ralph Bavaro and Elizabeth Hogan contended that their terminations because of their political affiliation violated their First Amendment rights, which protected them from dismissal based on their political affiliation. The Circuit Court affirmed a district court’s ruling that “the incumbents of the positions of Associate and Assistant Counsel are not entitled to First Amendment protection against patronage dismissals.”
There are limitations on political tests for continuing in the public service however. In Elrod v Burns, 427 US 347, the U.S. Supreme Court concluded that patronage dismissals may infringe upon government employees’ First Amendment rights to political belief and association.
However, the High Court also noted that a newly elected administration may expect political loyalty among at least some of its employees “to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.”
Subsequently the High Court reaffirmed that patronage dismissals may contravene the First Amendment in Branti v. Finkel [445 U.S. 507]. Branti concerned a deputy public defender employed by a political subdivision of New York. The test to be applied: has the appointing authority demonstrated that party affiliation is an appropriate requirement for the effective performance of the public office involved?
In Branti, the Supreme Court noted that political affiliation is not always relevant even to the job of a policymaker. As an example, the Branti decision notes that the coach of a state university’s football team [typically a position in the unclassified service] formulates policy, “but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa....”
The Second Circuit said that it understood Branti as standing for the proposition that “political affiliation is an appropriate [job] requirement when there is a rational connection between shared ideology and job performance” and thus the courts must look to the “inherent duties of the position” rather than the actual duties performed by the employee in a particular case. Accordingly, it is the official job description that controls, not the nature of the actual assignment or responsibilities of the individual.
In determining whether a “rational connection” exists between political affiliation and performance of the inherent duties of a position, the court said that it considers a number of factors, including the following:
1. Is the position exempt from civil service protection [subject to certain exceptions, i.e., veterans who served in time of war and exempt volunteer firefighters who may be subject to the provisions of Section 75 of the Civil Service Law]?
2. Is some technical competence or expertise required to satisfactorily perform the duties of the position?
3. Does the individual supervise the work of others? and
4. Is the incumbent “empowered to act and speak on behalf of a policymaker, especially an elected official”?
The court found that the positions held by Bavaro and Hogan (1) were in the exempt class; (2) required Bavaro, a supervisor, and Hogan, who was not a supervisor, to have “technical competence and expertise;” and (3) that they were not empowered to speak directly on behalf of an elected official. These findings, however, did not end the court’s inquiry.
The Circuit Court then found that Bavaro and Hogan represented the State in the performance of their duties, thereby reflecting the views of policymakers. This, the Circuit Court concluded, meant that Bavaro and Hogan were inherently involved in matters of policy extending “well beyond mere ministerial or technical duties.”
The court distinguished the role of Bavaro and Hogan from that of Branti. Branti, a deputy public defender, said the court, represented individuals accused of crimes -- not his employer. Accordingly, in a Branti situation the employee’s duty of loyalty is to the individual accused of a crime rather than to his or her employer - the Office of the Public Defender and there is no employer “policy issue” involved.
According to the ruling, Bavaro’s and Hogan’s “inherent duties” indicated a “rational connection between shared ideology and job performance,” so that “political affiliation is an appropriate [job] requirement” of these positions. Such was not the case in Branti, where political affiliation was not deemed a consideration to an individual’s continuation in public service although the position satisfied the four threshold elements set out by the Circuit Court.
* In September 1982 the Health Department justified its seeking jurisdictional re-classification of these titles to exempt status on the grounds that the incumbents “must be able to reflect the views of the Counsel and the [Health] Commissioner in oral appearances . . . and demonstrate the utmost discretion in handling these cases. To insure that the Commissioner’s views are appropriately reflected, the Agency needs maximum flexibility in selection, retention and remuneration.”
Bavaro and Hogan v Pataki, CA2, 130 F.3d 46
The Bavaro and Hogan v. Pataki case involved attorneys removed from their respective exempt class positions* in the New York State Health Department following the election of a new governor. There was no question that both were terminated because of their political affiliation.
The decision by the Second Circuit U.S. Court of Appeals is important as it sets out the various elements that the Second Circuit [New York State is within the Second Circuit’s jurisdiction] considers when deciding if an individual can claim First Amendment protection if he or she is terminated from the public service because of his or her political affiliation, or the lack of political affiliation.
Ralph Bavaro and Elizabeth Hogan contended that their terminations because of their political affiliation violated their First Amendment rights, which protected them from dismissal based on their political affiliation. The Circuit Court affirmed a district court’s ruling that “the incumbents of the positions of Associate and Assistant Counsel are not entitled to First Amendment protection against patronage dismissals.”
There are limitations on political tests for continuing in the public service however. In Elrod v Burns, 427 US 347, the U.S. Supreme Court concluded that patronage dismissals may infringe upon government employees’ First Amendment rights to political belief and association.
However, the High Court also noted that a newly elected administration may expect political loyalty among at least some of its employees “to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.”
Subsequently the High Court reaffirmed that patronage dismissals may contravene the First Amendment in Branti v. Finkel [445 U.S. 507]. Branti concerned a deputy public defender employed by a political subdivision of New York. The test to be applied: has the appointing authority demonstrated that party affiliation is an appropriate requirement for the effective performance of the public office involved?
In Branti, the Supreme Court noted that political affiliation is not always relevant even to the job of a policymaker. As an example, the Branti decision notes that the coach of a state university’s football team [typically a position in the unclassified service] formulates policy, “but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa....”
The Second Circuit said that it understood Branti as standing for the proposition that “political affiliation is an appropriate [job] requirement when there is a rational connection between shared ideology and job performance” and thus the courts must look to the “inherent duties of the position” rather than the actual duties performed by the employee in a particular case. Accordingly, it is the official job description that controls, not the nature of the actual assignment or responsibilities of the individual.
In determining whether a “rational connection” exists between political affiliation and performance of the inherent duties of a position, the court said that it considers a number of factors, including the following:
1. Is the position exempt from civil service protection [subject to certain exceptions, i.e., veterans who served in time of war and exempt volunteer firefighters who may be subject to the provisions of Section 75 of the Civil Service Law]?
2. Is some technical competence or expertise required to satisfactorily perform the duties of the position?
3. Does the individual supervise the work of others? and
4. Is the incumbent “empowered to act and speak on behalf of a policymaker, especially an elected official”?
The court found that the positions held by Bavaro and Hogan (1) were in the exempt class; (2) required Bavaro, a supervisor, and Hogan, who was not a supervisor, to have “technical competence and expertise;” and (3) that they were not empowered to speak directly on behalf of an elected official. These findings, however, did not end the court’s inquiry.
The Circuit Court then found that Bavaro and Hogan represented the State in the performance of their duties, thereby reflecting the views of policymakers. This, the Circuit Court concluded, meant that Bavaro and Hogan were inherently involved in matters of policy extending “well beyond mere ministerial or technical duties.”
The court distinguished the role of Bavaro and Hogan from that of Branti. Branti, a deputy public defender, said the court, represented individuals accused of crimes -- not his employer. Accordingly, in a Branti situation the employee’s duty of loyalty is to the individual accused of a crime rather than to his or her employer - the Office of the Public Defender and there is no employer “policy issue” involved.
According to the ruling, Bavaro’s and Hogan’s “inherent duties” indicated a “rational connection between shared ideology and job performance,” so that “political affiliation is an appropriate [job] requirement” of these positions. Such was not the case in Branti, where political affiliation was not deemed a consideration to an individual’s continuation in public service although the position satisfied the four threshold elements set out by the Circuit Court.
* In September 1982 the Health Department justified its seeking jurisdictional re-classification of these titles to exempt status on the grounds that the incumbents “must be able to reflect the views of the Counsel and the [Health] Commissioner in oral appearances . . . and demonstrate the utmost discretion in handling these cases. To insure that the Commissioner’s views are appropriately reflected, the Agency needs maximum flexibility in selection, retention and remuneration.”
Establing a special eligible list
Establing a special eligible list
NYC v NYS Division of Human Rights, 250 AD2d 273
This case started 25 years ago when Eddie Ricks took and passed Civil Service Examination No. 3090 for the title of sanitation worker in the New York City Department of Sanitation (DOS). Ricks was disqualified because of spina bifida, a condition that, under the medical standards then in place, automatically disqualified an applicant for the position.*
In August 1990, the then-Commissioner of Human Rights signed an order upholding a finding of unlawful discrimination. However, the original eligible list had expired, preventing Ricks from being placed on a special eligible list on the basis of Deas v. Levitt (73 NY2d 525). Nevertheless, the then-Commissioner directed the city to pay Ricks compensatory damages consisting of back pay computed from the date he was disqualified to the date the eligible list expired (offset by his actual earnings during that time) as well as the compensatory damages recommended by an Administrative Law Judge.
The State Division Human Rights subsequently realized that the Commissioner who signed the order had appeared as counsel for SDHR in the matter and that “such dual participation in the proceedings” required de novo review and a new order. The newly appointed successor Commissioner vacated the 1990 order, conducted a de novo review of the hearing record and issued a new order that found that Ricks had been discriminated against on the basis of a disability that did not prevent him from performing the duties of the position sought. The city appealed the new ruling.
The Appellate Division said that there was a significance change in the Civil Service Law since Rick’s initial filing of his complaint with SDHR in 1983 with respect to the Division’s 1990 order. In 1990, under the Deas decision, once an eligible list expired, an applicant could be placed on a special eligible list only if he or she had commenced the proceeding challenging the validity of the list prior to its expiration. In 1994, specifically in response to Deas, the Legislature amended Civil Service Law Section 56 to provided that “[a]n applicant or eligible whose disqualification has been reversed or whose rank order has been adjusted subsequent to the expiration of an eligible list shall be placed on a special eligible list for a length of time ... not to exceed a maximum of one year” (CSL Section 56[3]).
The court said that the amendment recognized that because there were often long delays in adjudicating such claims, whether by administrative or judicial proceeding, “[t]oo often applicants find that, like those in Deas and DiNatale, they have won the battle to be found eligible to compete for a permanent civil service appointment, but have lost the war -- because the eligible list is approaching expiration or has expired.”
The Appellate Division resolved the matter by approving the Commissioner’s order in part, directing the city to:
(1) create a special eligible list for the position of sanitation worker for Ricks;
(2) award Ricks retroactive seniority if he is appointed from the special eligible list; and
(3) pay him $10,000 for mental anguish.
It rejected the Commissioner’s awarding Ricks back pay because Ricks only had “an expectancy” of employment rather than a guarantee of an appointment from an eligible list.
* The medical standards were subsequently revised, and the automatic disqualification for spina bifida was dropped.
NYPPL
NYC v NYS Division of Human Rights, 250 AD2d 273
This case started 25 years ago when Eddie Ricks took and passed Civil Service Examination No. 3090 for the title of sanitation worker in the New York City Department of Sanitation (DOS). Ricks was disqualified because of spina bifida, a condition that, under the medical standards then in place, automatically disqualified an applicant for the position.*
In August 1990, the then-Commissioner of Human Rights signed an order upholding a finding of unlawful discrimination. However, the original eligible list had expired, preventing Ricks from being placed on a special eligible list on the basis of Deas v. Levitt (73 NY2d 525). Nevertheless, the then-Commissioner directed the city to pay Ricks compensatory damages consisting of back pay computed from the date he was disqualified to the date the eligible list expired (offset by his actual earnings during that time) as well as the compensatory damages recommended by an Administrative Law Judge.
The State Division Human Rights subsequently realized that the Commissioner who signed the order had appeared as counsel for SDHR in the matter and that “such dual participation in the proceedings” required de novo review and a new order. The newly appointed successor Commissioner vacated the 1990 order, conducted a de novo review of the hearing record and issued a new order that found that Ricks had been discriminated against on the basis of a disability that did not prevent him from performing the duties of the position sought. The city appealed the new ruling.
The Appellate Division said that there was a significance change in the Civil Service Law since Rick’s initial filing of his complaint with SDHR in 1983 with respect to the Division’s 1990 order. In 1990, under the Deas decision, once an eligible list expired, an applicant could be placed on a special eligible list only if he or she had commenced the proceeding challenging the validity of the list prior to its expiration. In 1994, specifically in response to Deas, the Legislature amended Civil Service Law Section 56 to provided that “[a]n applicant or eligible whose disqualification has been reversed or whose rank order has been adjusted subsequent to the expiration of an eligible list shall be placed on a special eligible list for a length of time ... not to exceed a maximum of one year” (CSL Section 56[3]).
The court said that the amendment recognized that because there were often long delays in adjudicating such claims, whether by administrative or judicial proceeding, “[t]oo often applicants find that, like those in Deas and DiNatale, they have won the battle to be found eligible to compete for a permanent civil service appointment, but have lost the war -- because the eligible list is approaching expiration or has expired.”
The Appellate Division resolved the matter by approving the Commissioner’s order in part, directing the city to:
(1) create a special eligible list for the position of sanitation worker for Ricks;
(2) award Ricks retroactive seniority if he is appointed from the special eligible list; and
(3) pay him $10,000 for mental anguish.
It rejected the Commissioner’s awarding Ricks back pay because Ricks only had “an expectancy” of employment rather than a guarantee of an appointment from an eligible list.
* The medical standards were subsequently revised, and the automatic disqualification for spina bifida was dropped.
NYPPL
Local law permitting suspension of an employee without pay beyond the 30 days permitted by Civil Service Law Section 75 held controlling
Local law permitting suspension of an employee without pay beyond the 30 days permitted by Civil Service Law Section 75 held controlling
Meringolo v Jacobson, 256 AD2d 20
Section 75(3) of the Civil Service Law authorizes the suspension of an individual upon whom disciplinary charges have been filed for up to 30 days without pay.* If the hearing has not been completed by the 30th day, the individual must be restored to the payroll. But what if a local law provides more flexibility? Which law takes precedence? The Meringolo shows that the answer depends on the details of the legislative history, including which law was enacted first.
Meringolo, a corrections captain, was suspended from his job with New York City for more than 30 days. Administrators cited City Administrative Code Section 9-112, which provides that a member of the city’s uniformed forces may be suspended without pay “while criminal charges are pending.”
When Meringolo challenged the legality of his suspension, the city cited Section 76(4) of the Civil Service Law, which provides that nothing in Section 75 shall be construed to “repeal or modify” any local law. The city claimed it could therefore legally suspend the captain without pay for than the 30-day period, as authorized by Section 75 pursuant to Section 9-112. The Appellate Division, upholding a lower court’s ruling, disagreed.
The court said the problem in the city’s reasoning was that Section 9-112 was not enacted until after Section 76(4) was legislated. Section 76(4) can be thought of as a “grandfather clause” that applies only to local laws enacted before its effective date. This implies that had Section 9-112 been in place prior to the adoption of Section 76(4), it would have been “grandfathered” and probably survived judicial review.
The Appellate Division affirmed the Supreme Court’s order directing the city to restore the captain to its payroll and pay him the back salary due him for the period of his suspension without pay in excess of 30 days.
* Disciplinary grievance procedures set out in a collective bargaining agreement may permit the suspension of an employee without pay pending the resolution of disciplinary charges. Also, Education Law Section 3020-a.2(b) authorizes an educator against whom charges have been filed to be suspended without pay if the individual has entered a guilty plea to or has been convicted of a felony crime involving “the criminal sale or possession of a controlled substance, a precursor of a controlled substance, or drug paraphernalia as defined in article two hundred twenty or two hundred twenty-one of the penal law; or a felony crime involving the physical or sexual abuse of a minor or student.”
NYPPL
Meringolo v Jacobson, 256 AD2d 20
Section 75(3) of the Civil Service Law authorizes the suspension of an individual upon whom disciplinary charges have been filed for up to 30 days without pay.* If the hearing has not been completed by the 30th day, the individual must be restored to the payroll. But what if a local law provides more flexibility? Which law takes precedence? The Meringolo shows that the answer depends on the details of the legislative history, including which law was enacted first.
Meringolo, a corrections captain, was suspended from his job with New York City for more than 30 days. Administrators cited City Administrative Code Section 9-112, which provides that a member of the city’s uniformed forces may be suspended without pay “while criminal charges are pending.”
When Meringolo challenged the legality of his suspension, the city cited Section 76(4) of the Civil Service Law, which provides that nothing in Section 75 shall be construed to “repeal or modify” any local law. The city claimed it could therefore legally suspend the captain without pay for than the 30-day period, as authorized by Section 75 pursuant to Section 9-112. The Appellate Division, upholding a lower court’s ruling, disagreed.
The court said the problem in the city’s reasoning was that Section 9-112 was not enacted until after Section 76(4) was legislated. Section 76(4) can be thought of as a “grandfather clause” that applies only to local laws enacted before its effective date. This implies that had Section 9-112 been in place prior to the adoption of Section 76(4), it would have been “grandfathered” and probably survived judicial review.
The Appellate Division affirmed the Supreme Court’s order directing the city to restore the captain to its payroll and pay him the back salary due him for the period of his suspension without pay in excess of 30 days.
* Disciplinary grievance procedures set out in a collective bargaining agreement may permit the suspension of an employee without pay pending the resolution of disciplinary charges. Also, Education Law Section 3020-a.2(b) authorizes an educator against whom charges have been filed to be suspended without pay if the individual has entered a guilty plea to or has been convicted of a felony crime involving “the criminal sale or possession of a controlled substance, a precursor of a controlled substance, or drug paraphernalia as defined in article two hundred twenty or two hundred twenty-one of the penal law; or a felony crime involving the physical or sexual abuse of a minor or student.”
NYPPL
Withdrawing from membership in a New York State public retirement system
Withdrawing from membership in a New York State public retirement system
Richardson v NYC Employees’ Retirement System, NYS Supreme Court, Justice Gammerman, [Not selected for publication in the Official Reports]
A member of a public retirement system may lose his or her eligibility for significant benefits if he or she decides to withdraw his or her contributions upon leaving public employment. The Richardson decision illustrates this.
Richardson, a New York City corrections officer, joined the New York City Employees’ Retirement System [NYCERS] in 1987. When he resigned from his position on September 29, 1997, Richardson submitted a form to NYCERS asking for a refund of all of the money he contributed to the System. In late November 1997, the System sent him a check for the full amount of his employee contributions -- approximately $19,000.
However, Richardson had also submitted an application for a disability pension to the Medical Division of NYCERS on October 14, 1997. He was found disabled by both the NYCERS Medical Board and an outside health provider after medical examinations. The Medical Division staff was unaware that Richardson had applied for, and received, his membership contributions.
On February 9, 1998, the Medical Division wrote to Richardson indicating that the Medical Board had approved his application and the NYCERS Board of Trustees would consider it. A few days later NYCERS again wrote to Richardson advising him that its February 9, 1998 letter was sent by mistake as he was in fact no longer eligible for disability retirement benefits because in September 1997 he elected to withdraw his employee contributions. Accordingly, said the System, he ceased to be a member of NYCERS and thus was ineligible for disability retirement benefits.
Richardson sued, contending that he was entitled to a disability pension since the Medical Board approved his initial application. He claimed that NYCERS’ determination rejecting his application for disability retirement was arbitrary, capricious and unlawful under both the United States and New York constitutions. He also claimed that had he been notified that the withdrawal of his contributions would disqualify him for disability retirement, he would have returned the money and remained a member of NYCERS.
As to Richardson’s argument concerning the rejection of his application for disability retirement, Justice Gammerman said that Section 517 of the Retirement and Social Security Law specifically provides that: “[u]pon withdrawal of contributions by a member ... membership in the public retirement system involved shall cease.” Justice Gammerman concluded that Richardson’s withdrawal of his contributions terminated his membership with NYCERS and his eligibility for disability benefits.
Justice Gammerman also rejected Richardson’s contention that the System should have warned him of the fact that he would become ineligible for benefits if he withdrew his contributions. He said that:
“there is no affirmative duty for NYCERS administrative staff to inform about the specifics of pension provisions beyond providing written material ... [members are] thus charged with constructive knowledge [of the pension materials]” and that “not inquiring about the status of one’s pension rights is unreasonable.”
The court held that NYCERS’ decision was reasonable and that its refusal to consider Richardson’s application for disability retirement benefits was neither arbitrary nor capricious. It then dismissed Richardson’s petition.
If a member of the New York State Employees’ Retirement [ERS] system leaves government service and does not withdraw his or her employee contributions, he or she continues to be a member of ERS. His or her ERS membership, however, will cease after five years have elapsed since he or she last left government service, or he or she dies or retires, whichever event first occurs [Section 40.f, Retirement and Social Security Law].
====================
John J. Murphy, the NYCERS' Executive Director from 1990 to 2005, e-mailed NYPPL stating that “I assume this member did not have 10 years of credited service. If he did, the refund was given contrary to law. The fact that he was granted a tentative disability, however, leads to the possibility that he may have had 10 years of service. Unless he was disabled due to an accident on the job, he would have had to have been credited with ten years of service to have been granted a disability. The crucial fact is how much service was he credited with when he resigned on Sept 27, 1997. Mr. Murphy further asked: “Did this plaintiff have 10 years of service in Sept, 1997? This supersedes the court decision. NYCERS must correct any error if they find them. If the refund was given after 10 years of credited service, it was invalid and therefore, the disability benefit is in force retroactively to 1997. [Mr. Murphy posts a blog focusing on the New York City Employees’ Retirement System at http://nycers-info-murphy.blogspot.com/ ]
NYPPL comments: Assuming, but not conceding, that Richardson did not have 10 years of member service at the time he withdrew his employee contributions, the Richardson decision demonstrates that in the event a member of a public retirement system withdraws his or her "employee contributions" upon resignation or termination, which he or she may elect to do if otherwise permitted, his or her membership in a New York public retirement system* ceases for the purposes of subsequently claiming eligibility for any benefit otherwise available to a member.
In contrast, were such an individual not to withdraw such employee contributions and he or she is later appointed to a position whereby he or she is required [or may elect] to become a member of a public retirement system of this State within the permitted period of time for "rejoining the System," his or her membership, and member service credit, could determined based on his or her membership as of the date of his or her separation. This suggests that absent compelling circumstances, the individual might be better served if he or she were to consider leaving the “employee contributions” with the System.
* The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.
NYPPL
Richardson v NYC Employees’ Retirement System, NYS Supreme Court, Justice Gammerman, [Not selected for publication in the Official Reports]
A member of a public retirement system may lose his or her eligibility for significant benefits if he or she decides to withdraw his or her contributions upon leaving public employment. The Richardson decision illustrates this.
Richardson, a New York City corrections officer, joined the New York City Employees’ Retirement System [NYCERS] in 1987. When he resigned from his position on September 29, 1997, Richardson submitted a form to NYCERS asking for a refund of all of the money he contributed to the System. In late November 1997, the System sent him a check for the full amount of his employee contributions -- approximately $19,000.
However, Richardson had also submitted an application for a disability pension to the Medical Division of NYCERS on October 14, 1997. He was found disabled by both the NYCERS Medical Board and an outside health provider after medical examinations. The Medical Division staff was unaware that Richardson had applied for, and received, his membership contributions.
On February 9, 1998, the Medical Division wrote to Richardson indicating that the Medical Board had approved his application and the NYCERS Board of Trustees would consider it. A few days later NYCERS again wrote to Richardson advising him that its February 9, 1998 letter was sent by mistake as he was in fact no longer eligible for disability retirement benefits because in September 1997 he elected to withdraw his employee contributions. Accordingly, said the System, he ceased to be a member of NYCERS and thus was ineligible for disability retirement benefits.
Richardson sued, contending that he was entitled to a disability pension since the Medical Board approved his initial application. He claimed that NYCERS’ determination rejecting his application for disability retirement was arbitrary, capricious and unlawful under both the United States and New York constitutions. He also claimed that had he been notified that the withdrawal of his contributions would disqualify him for disability retirement, he would have returned the money and remained a member of NYCERS.
As to Richardson’s argument concerning the rejection of his application for disability retirement, Justice Gammerman said that Section 517 of the Retirement and Social Security Law specifically provides that: “[u]pon withdrawal of contributions by a member ... membership in the public retirement system involved shall cease.” Justice Gammerman concluded that Richardson’s withdrawal of his contributions terminated his membership with NYCERS and his eligibility for disability benefits.
Justice Gammerman also rejected Richardson’s contention that the System should have warned him of the fact that he would become ineligible for benefits if he withdrew his contributions. He said that:
“there is no affirmative duty for NYCERS administrative staff to inform about the specifics of pension provisions beyond providing written material ... [members are] thus charged with constructive knowledge [of the pension materials]” and that “not inquiring about the status of one’s pension rights is unreasonable.”
The court held that NYCERS’ decision was reasonable and that its refusal to consider Richardson’s application for disability retirement benefits was neither arbitrary nor capricious. It then dismissed Richardson’s petition.
If a member of the New York State Employees’ Retirement [ERS] system leaves government service and does not withdraw his or her employee contributions, he or she continues to be a member of ERS. His or her ERS membership, however, will cease after five years have elapsed since he or she last left government service, or he or she dies or retires, whichever event first occurs [Section 40.f, Retirement and Social Security Law].
====================
John J. Murphy, the NYCERS' Executive Director from 1990 to 2005, e-mailed NYPPL stating that “I assume this member did not have 10 years of credited service. If he did, the refund was given contrary to law. The fact that he was granted a tentative disability, however, leads to the possibility that he may have had 10 years of service. Unless he was disabled due to an accident on the job, he would have had to have been credited with ten years of service to have been granted a disability. The crucial fact is how much service was he credited with when he resigned on Sept 27, 1997. Mr. Murphy further asked: “Did this plaintiff have 10 years of service in Sept, 1997? This supersedes the court decision. NYCERS must correct any error if they find them. If the refund was given after 10 years of credited service, it was invalid and therefore, the disability benefit is in force retroactively to 1997. [Mr. Murphy posts a blog focusing on the New York City Employees’ Retirement System at http://nycers-info-murphy.blogspot.com/ ]
NYPPL comments: Assuming, but not conceding, that Richardson did not have 10 years of member service at the time he withdrew his employee contributions, the Richardson decision demonstrates that in the event a member of a public retirement system withdraws his or her "employee contributions" upon resignation or termination, which he or she may elect to do if otherwise permitted, his or her membership in a New York public retirement system* ceases for the purposes of subsequently claiming eligibility for any benefit otherwise available to a member.
In contrast, were such an individual not to withdraw such employee contributions and he or she is later appointed to a position whereby he or she is required [or may elect] to become a member of a public retirement system of this State within the permitted period of time for "rejoining the System," his or her membership, and member service credit, could determined based on his or her membership as of the date of his or her separation. This suggests that absent compelling circumstances, the individual might be better served if he or she were to consider leaving the “employee contributions” with the System.
* The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.
NYPPL
Disability benefits - volunteer firefighters
Disability benefits - volunteer firefighters
Griffo v Onondaga Hill VFD, 256 AD2d 858
Although the Workers’ Compensation Board found that Greg Griffo had sustained a “permanent partial disability” as a result of two back injuries he suffered while serving as a volunteer firefighter, it also determined that Griffo had not “suffered a loss of [his] earning capacity” within the meaning of Section 3.8 of the Volunteer Firefighters’ Benefit Law.
Section 3.8 defines the term “loss of earning capacity” as the volunteer’s inability to perform his or her usual work, or some reasonably alternative employment, as a result of a service-related injury. This definition, the Appellate Division concluded, was the key to resolving Griffo’s appeal from the board’s determination.
According to the ruling, Griffo’s chiropractor authorized his return to work after both accidents. Some time later, the chiropractor imposed lifting and bending restrictions on Griffo because his back condition became exacerbated. According to Griffo, these limitations precluded him from applying for “higher paying and more physically demanding positions.”
However, the Appellate Division said that “the loss of opportunities for advancement is not relevant to whether [Griffo] suffered a loss of earning capacity within the meaning of Section 3.8.
The court noted that the statute simply does not make any provision for any award of benefits based on expected future income due to advancements or promotions. Since the record supported the board’s finding that Griffo “was capable of performing his usual work duties following both accidents,” his claim for benefits was properly rejected by the board.
NYPPL
Griffo v Onondaga Hill VFD, 256 AD2d 858
Although the Workers’ Compensation Board found that Greg Griffo had sustained a “permanent partial disability” as a result of two back injuries he suffered while serving as a volunteer firefighter, it also determined that Griffo had not “suffered a loss of [his] earning capacity” within the meaning of Section 3.8 of the Volunteer Firefighters’ Benefit Law.
Section 3.8 defines the term “loss of earning capacity” as the volunteer’s inability to perform his or her usual work, or some reasonably alternative employment, as a result of a service-related injury. This definition, the Appellate Division concluded, was the key to resolving Griffo’s appeal from the board’s determination.
According to the ruling, Griffo’s chiropractor authorized his return to work after both accidents. Some time later, the chiropractor imposed lifting and bending restrictions on Griffo because his back condition became exacerbated. According to Griffo, these limitations precluded him from applying for “higher paying and more physically demanding positions.”
However, the Appellate Division said that “the loss of opportunities for advancement is not relevant to whether [Griffo] suffered a loss of earning capacity within the meaning of Section 3.8.
The court noted that the statute simply does not make any provision for any award of benefits based on expected future income due to advancements or promotions. Since the record supported the board’s finding that Griffo “was capable of performing his usual work duties following both accidents,” his claim for benefits was properly rejected by the board.
NYPPL
Lunchtime injuries
Lunchtime injuries
Smith v City of Rochester, 255 AD2d 863
Donna Smith, a City of Rochester parking monitor, slipped on a wet floor and fell while leaving a restaurant during an unpaid lunch break. The Workers’ Compensation Board denied Smith’s workers’ compensation claim, finding that she had not sustained an accidental injury in the course of her employment.
The Appellate Division affirmed the board’s determination, holding that “lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break.” The court said that the record showed that Smith had discretion as to the time and location of her lunch breaks and the city neither suggested that she eat at that particular restaurant nor derived any benefit from her patronizing that establishment.
NYPPL
Smith v City of Rochester, 255 AD2d 863
Donna Smith, a City of Rochester parking monitor, slipped on a wet floor and fell while leaving a restaurant during an unpaid lunch break. The Workers’ Compensation Board denied Smith’s workers’ compensation claim, finding that she had not sustained an accidental injury in the course of her employment.
The Appellate Division affirmed the board’s determination, holding that “lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break.” The court said that the record showed that Smith had discretion as to the time and location of her lunch breaks and the city neither suggested that she eat at that particular restaurant nor derived any benefit from her patronizing that establishment.
NYPPL
Nov 29, 2010
Civil Service Law controls in the event positions in the classified service are transferred between a school district and a BOCES
Civil Service Law controls in the event positions in the classified service are transferred between a school district and a BOCES
Matter of Hellner v Board of Educ. of Wilson Cent. School Dist., 2010 NY Slip Op 08472, Decided on November 19, 2010, Appellate Division, Fourth Department
Janet Hellner was employed by the Wilson Central District as an occupational therapist when, as a result of budget considerations, the District abolished her position* and entered into an agreement with BOCES to provide occupational therapy services.
Contending that this action constituted a "transfer of a function," the union said that Civil Service Law §70(2) required that the District certify Hellner’s name to BOCES as the employee to be transferred and that BOCES offer her the position of occupational therapist.
The District and BOCES, on the other hand, contend that Education Law §3014-a and 1950 controlled with respect to Hellner's transfer rights inasmuch as BOCES was to take over the occupational therapy program from the District.
Ultimately the Appellate Division ruled that:
1. The Agreement between the District and BOCES providing for occupational therapy services constituted the "transfer of a function" within the meaning of Civil Service Law §70(2).
2. The theory advanced by both the District and BOCES that Education Law §§3014-a and 1950 “exclusively govern the issue of employee transfer rights” was incorrect in this instance as neither §3014-a nor §1950 provided any transfer rights with respect incumbents of non-teaching positions in the classified service, citing Matter of Vestal Employees Association v Public Employment Relations Board, 94 NY2d 409.
In Vestal the Court of Appeals ruled that a school district employee providing printing services and thus had a non-educational position [in the classified service] was "afforded certain protections upon the transfer of his functions pursuant to Civil Service Law §70(2)."
The Appellate Division ruled that the transfer of occupational therapy services from the District to BOCES “constitutes the transfer of a function within the meaning of Civil Service Law §70(2) and thus Hellner, as the employee whose function was transferred, is afforded certain affirmative rights upon the transfer” of the position.
As to the District’s argument that this action “would violate various administrative provisions applicable to BOCES and the District,” the Appellate Division said that to the extent that such administrative provisions are inconsistent with §70(2), the statute control.
The Appellate Division said that "[A]dministrative regulations are invalid if they conflict with a statute's provisions or are inconsistent with its design and purpose," citing Matter of City of New York v Stone, 11 AD3d 236.
However, court said that the record was insufficient to enable it to determine whether BOCES had sufficient occupational therapy staff at the time of the Agreement and remitted the matter to Supreme Court for further proceedings on the union's petition to determine that issue.
* In the event an appropriate preferred list is certified to an appointing authority to fill a vacancy, the appointing authority must either [1] use the preferred list to fill the vacancy or [2] may elect to keep the position vacant.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08472.htm
For information about PELP's e-book Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
NYPPL
Matter of Hellner v Board of Educ. of Wilson Cent. School Dist., 2010 NY Slip Op 08472, Decided on November 19, 2010, Appellate Division, Fourth Department
Janet Hellner was employed by the Wilson Central District as an occupational therapist when, as a result of budget considerations, the District abolished her position* and entered into an agreement with BOCES to provide occupational therapy services.
Contending that this action constituted a "transfer of a function," the union said that Civil Service Law §70(2) required that the District certify Hellner’s name to BOCES as the employee to be transferred and that BOCES offer her the position of occupational therapist.
The District and BOCES, on the other hand, contend that Education Law §3014-a and 1950 controlled with respect to Hellner's transfer rights inasmuch as BOCES was to take over the occupational therapy program from the District.
Ultimately the Appellate Division ruled that:
1. The Agreement between the District and BOCES providing for occupational therapy services constituted the "transfer of a function" within the meaning of Civil Service Law §70(2).
2. The theory advanced by both the District and BOCES that Education Law §§3014-a and 1950 “exclusively govern the issue of employee transfer rights” was incorrect in this instance as neither §3014-a nor §1950 provided any transfer rights with respect incumbents of non-teaching positions in the classified service, citing Matter of Vestal Employees Association v Public Employment Relations Board, 94 NY2d 409.
In Vestal the Court of Appeals ruled that a school district employee providing printing services and thus had a non-educational position [in the classified service] was "afforded certain protections upon the transfer of his functions pursuant to Civil Service Law §70(2)."
The Appellate Division ruled that the transfer of occupational therapy services from the District to BOCES “constitutes the transfer of a function within the meaning of Civil Service Law §70(2) and thus Hellner, as the employee whose function was transferred, is afforded certain affirmative rights upon the transfer” of the position.
As to the District’s argument that this action “would violate various administrative provisions applicable to BOCES and the District,” the Appellate Division said that to the extent that such administrative provisions are inconsistent with §70(2), the statute control.
The Appellate Division said that "[A]dministrative regulations are invalid if they conflict with a statute's provisions or are inconsistent with its design and purpose," citing Matter of City of New York v Stone, 11 AD3d 236.
However, court said that the record was insufficient to enable it to determine whether BOCES had sufficient occupational therapy staff at the time of the Agreement and remitted the matter to Supreme Court for further proceedings on the union's petition to determine that issue.
* In the event an appropriate preferred list is certified to an appointing authority to fill a vacancy, the appointing authority must either [1] use the preferred list to fill the vacancy or [2] may elect to keep the position vacant.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08472.htm
For information about PELP's e-book Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
NYPPL
Employer must prove that the employee knew, but failed to follow, procedures
Employer must prove that the employee knew, but failed to follow, procedures
NYC Department of Environmental Protection v Segarra, OATH Index No. 2730/10
The New York City Department of Environmental Protection charged Anthony Segarra, a senior sewage treatment worker at a water pollution control plant, with two instances of neglect of duty involving the taking of water samples.
OATH Administrative Law Judge Alessandra F. Zorgniotti found that the Department failed to prove that Segarra knew about the procedures at issue.
Accordingly, Judge Zorgniotti recommended that the charges that the Department had filed against Segarra be dismissed.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2730.pdf
NYPPL
NYC Department of Environmental Protection v Segarra, OATH Index No. 2730/10
The New York City Department of Environmental Protection charged Anthony Segarra, a senior sewage treatment worker at a water pollution control plant, with two instances of neglect of duty involving the taking of water samples.
OATH Administrative Law Judge Alessandra F. Zorgniotti found that the Department failed to prove that Segarra knew about the procedures at issue.
Accordingly, Judge Zorgniotti recommended that the charges that the Department had filed against Segarra be dismissed.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2730.pdf
NYPPL
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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.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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