Injury on the job may not qualify for accidental disability retirement benefits

Injury on the job may not qualify for accidental disability retirement benefits
Silver-Smith v McCall, 298 AD2d 696

Fred Silver-Smith, a court officer, applied for accidental disability retirement benefits as a result of an injury that he sustained in the course of physically restraining and removing an unruly prisoner from the courtroom where he was working. His application was rejected by the Employees' Retirement System because "the incident involved a risk inherent in [Silver-Smith's] employment and did not constitute a qualifying accident as that term is used in Retirement and Social Security Law Section 605-a."

Quoting from McCambridge v McGuire, 67 NY2d 563, the Appellate Division said that for the purposes of establishing a valid claim for an accidental disability retirement benefit, the individual must demonstrate that he or she was the victim of "a precipitating accidental event ... which was not a risk of the work performed."

Since Silver-Smith's injury was conceded to have occurred as the result of his having restrained a person who was threatening the peace and security of a court proceeding, and this activity was a regular, though infrequent, part of his duties, the court ruled that his injury "resulted from a recognized risk inherent in [Silver-Smith's] normal duties and thus was not an accident within the ambit of the statute."

Although the specific outburst which required Silver-Smith's intervention in this instance was abrupt and unexpected, the court said that the "maintenance of order by restraining unruly persons in the courtroom was a recognized part of his normal duties." Accordingly, the Appellate Division ruled that there is substantial evidence supporting the Comptroller's determination that Silver-Smith did not qualify for accidental disability retirement benefits.

State Insurance Fund penalized for unilaterally discontinuing claimants workers’ compensation benefits

State Insurance Fund penalized for unilaterally discontinuing claimants workers’ compensation benefits

Matter of Gillan v New York State Dept. of Corrections, 2011 NY Slip Op 06959, Appellate Division, Third Department

Dennis Gillan, correction officer employed by the New York State Department of Corrections suffered a work-related injury and was receiving workers’ compensation benefits from the State Insurance Fund [SIF], the Department’s workers' compensation carrier based on a determination that he had a “permanent partial disability.”

SIF, however, subsequently unilaterally stopped paying compensation benefits to Gillan on the basis that a "fraud referral" concerning Gillan had been submitted by the Orange County District Attorney's office. It is undisputed that all criminal charges stemming from this referral were dismissed.

Gillan, alleging that SIF had improperly suspended compensation payments without following proper procedures, was awarded back benefits by a Workers’ Compensation Law Judge and the SIF was penalized the Fund for the unilateral suspension. Ultimately the Law Judge scheduled a hearing on the issue of whether Gillan had fraudulently filed claims for workers’ compensation benefits and found that he had not violated Workers' Compensation Law §114-a. The Workers’ Compensation Board affirmed the Law Judge’s decision and both the Department and SIF appealed that ruling.

In response to the Department’s and SIF’s appeal from the Board’s decision, the Appellate Division held that the Board’s decision regarding an alleged violation of Workers’ Compensation Law §114-a “will not be disturbed if substantial evidence supports it” and dismissed the appeal.

The court found it “significant that the Board, which ‘is the sole arbiter of witness credibility’ credited both [Gillan’s] testimony and the extensive medical proof in the record establishing his partial disability.”

The Appellate Division then examined the Department’s and SIF’s remaining arguments, including their contention that the Board erred in not finding that Gillan voluntarily withdrew from the workforce and their challenge to the denial of the Department’s application for full Board review and found them “to be unpersuasive.”

The court also noted that although SIF was provided with an opportunity to have Gillan reexamined by an independent medical examiner, it did not do so and instead chose to have the medical practitioner review Gillan’s medical file and videotaped surveillance footage. In the absence of an actual physical examination, the Worker’s Compensation Board specifically found the resulting report “to be of little weight” and declined to credit it.

NYSUT not a public employer within the meaning of the Taylor Law

NYSUT not a public employer within the meaning of the Taylor Law
Mtr. of Curtis Birthwright and NYSUT, PERB Case U-26457

The Board affirmed the Decision of the Director of Public Employment Practices and Representation (Director) dismissing as deficient Birthwright's improper practice charge alleging that NYSUT violated §§209-a.1(a), (b) and (c) and 209-a.2(a), (b) and (c) of the Public Employees' Fair Employment Act (Act). The Director dismissed the alleged violations of §209-a.1 of the Act as NYSUT is not a public employer within the meaning of the Act and the §209-a.2 allegations as NYSUT is not a public employee organization and owes no duty of fair representation to Birthwright. The Board reiterated that timely service upon other parties is a component of timely filing and that exceptions that have not been timely served will be denied, even if no objection to failure of service is received from the other parties to the proceeding. Birthwright filed exceptions with the Board on January 31, 2006, however, his exceptions were not served on NYSUT until March 2, 2006. The exceptions, not having been timely served on NYSUT, were denied. 

Judicial review – credibility of a witness

Judicial review – credibility of a witness
Danahy v Kerik, 298 A.D.2d 278

Assuming a public employer follows proper procedure, what must be shown to sustain discipline it invoked under Section 75 of the Civil Service Law? Historically the courts have indicated that as long as there is substantial evidence supporting the finding(s) of fact and that the disciplinary penalty imposed did not violate the Pell standard, they will not disturb the decision of the employing body.

Under the Pell standard, the Court will not substitute its judgment as to appropriate disciplinary action for that of the employing body unless the discipline is so harsh as to "shock one's sense of fairness."

What happens, however, when there is an issue concerning the credibility of a witness's testimony? In Danahy, the Appellate Division reaffirmed its long-standing position that it will not overrule a hearing officer who decides to credit one witness's testimony over another's. In other words, the trier of the case's decision as to creditability will prevail unless the challenging party can demonstrate that such reliance was manifestly improper, a difficult task at best.

Disciplinary charges alleging misconduct were filed against a New York City police officer, Kevin Danahy. The hearing officer found Danahy guilty of the charges -- he used excessive force in making an arrest -- and recommended that Danahy be suspended for 20 days without pay. The Police Commissioner accepting the hearing officer's findings and recommendation.

Danahy had testified that he didn't strike or otherwise injure the complainant, but rather he and the complainant merely fell to the ground while the complainant was flailing his arms in an attempt to avoid being handcuffed. The hearing officer, however, rejected Danahy's version of the event and found him guilty of the charges.

Danahy commenced an Article 78 proceeding challenging the ruling, contending that (1) the decision wasn't supported by substantial evidence and that (2) the discipline imposed violated the Pell Standard. The Court said that it would not disturb the hearing officer's determination as to the credibility of witnesses and that the 20-day suspension did not violate the Pell Standard.

Typically the courts will consistently defer to a hearing officer with respect to the determinations concerning the credibility of the witness testifying in a Section 75 disciplinary hearing. Essentially, where the court determines that there is substantial evidence to support the hearing officer's findings and establish guilt, the critical question becomes whether or not the penalty imposed reasonable under the circumstances.

In this instance the Appellate Division held that a suspension for 20 days without pay "did not shock its sense of fairness" and sustained the Commissioner's determination.

Termination of an employee during a probationary period or traineeship

Termination of an employee during a probationary period or traineeship
Dasey v Anderson, CA1, 304 F.3d 148

What are the rules governing the dismissal of a person permanent appointed to his or her position during his or her probationary period?

Are the same principles applied in cases involving an individual who is required to satisfactorily complete a traineeship as a condition of employment?

The Dasey case provides an opportunity to consider these questions.

The individual was dismissed from his position as a probationary state trooper on the grounds that he made a material misstatement in his employment application.

According to the U.S. Circuit Court of Appeals' decision, the individual had satisfactorily completed his training at the Massachusetts State Police Academy and was enlisted as a probationary uniformed member of the Massachusetts State Police [MSP]. In the course of completing his employment application for State Trooper, the trooper stated that he did not use illegal drugs and, during the preceding five-year period, had not "used, possessed, supplied or manufactured any illegal drugs."

On September 14, 1999, while the trooper was still in probationary status, MSP's review of a videotape that had been seized by state troopers while executing a search warrant in an unrelated homicide investigation. The videotape "revealed Dasey and others apparently smoking marijuana." MSP deemed Dasey as having made a false material statement when he denied prior drug use during the application process and he was given a "general discharge" from the MSP effective close of business September 14, 1999.

Dasey sued MSP, claiming it had violated federal and state laws by failing to provide him with a pre-termination hearing. A federal district court judge granted MSP's motion for summary judgment dismissing Dasey's petition, explaining that while in probationary status Dasey had no reasonable expectation of continued employment and thus he had no constitutionally protected property interest in his job. The Circuit Court of Appeals affirmed the District Court's ruling.

Dasey also contended that he was entitled to a hearing was based on a provision in the collective bargaining agreement [CBA] negotiated by the MSP and the union. The CBA included a "bargained-for extension of the right to a pre-termination hearing" to all troopers. In response to this argument the Circuit Court of Appeals held that:

Because neither the collective bargaining agreement nor the MSP's customs and practices provided Dasey with a reasonable expectation of continued employment, he had no constitutionally protected property interest in his job. Absent such an interest, he had no right to a pre-termination hearing.

The general rule in New York State is that a permanent appointee whose employment is subject to the disciplinary provisions set out in Section 75 of the Civil Service Law is entitled to notice and hearing before he or she may be terminated for disciplinary reasons. While serving his or her probationary period, however, an individual permanently appointed to such a position may be dismissed without notice and hearing for any lawful reason after he or she has completed the minimum period of probation and prior to the end of his or her maximum period of probation.

In contrast, if the appointing authority wishes to dismiss a probationary employee before he or she has completed the minimum period of probation, the courts have held that the individual is entitled to notice and a pre-termination hearing.

Another factor might be relevant in cases of probationary employment - traineeship requirements.

In Franks v South Beach Psychiatric Center, Supreme Court, Richmond County, the interrelationship between temporary service, permanent appointment, trainee status and probation was considered.

Franks had been appointed as a Mental Hygiene Therapy Aide Trainee. This appointment involved the satisfactory completion of a one-year training period.

Because of outstanding preferred lists, Franks was initially appointed to his position as a temporary employee pending canvass of the preferred lists and he commenced his "traineeship" in the position. On January 21, 1984, some three months later, Franks was "permanently appointed" to the position, subject to the successful completion of a 52-week probationary period.

On January 2, 1985 Franks was terminated from his position without any hearing because of his alleged failure to satisfactorily complete the probationary period.

Franks claimed that his period of probation had to coincide with his training period and since he had completed his training period in October 1984, he was not a probationary employee at the time of his termination. Accordingly, he argued, he could not be discharged without notice and hearing.

The Appellate Division ruled that there was no merit to Franks' argument. Why? Because, explained the court, under the controlling probationary rules, the probationary period for a trainee is from 26 to 52 weeks or the length of the training period, which ever is longer. As Frank's permanent appointment did not become effective until January 21, 1984, (at which time he was still a trainee) his 52-week probationary period would not end until January 20, 1985. Accordingly, his termination without any hearing on January 2, 1985, was made while he was still a probationary employee and was therefore lawful.

The Franks decision supports the proposition that a traineeship and the probationary period are two different conditions of employment For example, a trainee may be serving as a provisional employee, complete the traineeship, and later take and pass the required examination and subsequently be appointed on a permanent basis.

His or her required probationary period pursuant to Section 63 of the Civil Service Law would commence upon the individual's permanent appointment to the position, notwithstanding the fact that he or she may have already successfully completed the required traineeship.

By the same token, if a traineeship extends beyond the probationary period, the individual may be subject to termination without notice and hearing if he or she fails to complete the traineeship satisfactorily.

Another case that distinguishes between probationary status and traineeship status is Sergeants v Brooklyn Developmental Center, 56 NY2d 628.

In Sergeants, a number of probationary employees were terminated at the end of their respective probationary periods. They sued for reinstatement contending that they had not been provided with the 200 hours of training required by department regulations.

Dismissing their appeal, the Court of Appeals first affirmed the principle that "... the employment of a probationary employee may be terminated at the end of the probationary term without a hearing and without specific reasons being stated."

The court then rejected Sergeants' "traineeship argument," commenting that the mandated training involved would not have addressed the particular demonstrations of poor performance leading to their respective terminations. The evidence in the record, said the court, indicated that the poor performance was related "to fitness for the position" rather than job performance elements that the training provided for by regulation could remedy.

Among the examples of poor performance cited by the court were sleeping on the job, habitual lateness, unscheduled absence, failure to perform overtime assignments and similar poor work habits.

The decision also indicated that the only issue for review was whether the appointing officer acted in good faith in terminating the employee.

The lesson here: Satisfactory completion of probation and satisfactory completion of a traineeship are two different requirements that must be met by the appointee and he or she must satisfy both in order for a permanent appointee to be continued in service.

Where the successful completion of a traineeship is required in order to be continued in service, however, that condition should be communicated to the individual in the examination announcement or in the offer of his or her appointment to the position.

As to the authority for requiring the completion of a traineeship, the rules of the State Civil Service Commission concerning traineeships are set out in 4 NYCRR 4.3 and provide as follows:

Section 4.3 Trainee appointments and promotions. The Civil Service Department may require that permanent appointments or promotions to designated positions shall be conditioned upon the satisfactory completion of a term of service as a trainee in such a position or in an appropriate, lower, training title or the completion of specified training or academic courses, or both. The period of such term of training service shall be prescribed by the department. Upon the satisfactory completion of such training term, and of specified courses if required, an appointee shall be entitled to full permanent status in the position for which appointment was made. Any appointment hereunder shall be subject to such probationary period as is prescribed in [Section 4.5 of] these rules. Also, the employment of such person may be discontinued at the end of the term of training service if his conduct, capacity or fitness is not satisfactory, or at any time if he fails to pursue or continue satisfactorily such training or academic courses as may be required.

Many municipal civil service commissions have adopted similar rules concerning traineeships.

Employees assumed to have knowledge of their employer's policies

Employees assumed to have knowledge of their employer's policies
Gallagher v Commissioner of Labor, 298 A.D.2d 828

Robert J. Gallagher was suspended from his position as a senior insurance examiner after criminal charges were filed against him. The criminal charges alleged that he had purchased and sold stock options in an insurance company that was regulated by his employer, the New York State Department of Insurance.

Gallagher filed for unemployment insurance benefits but his application was denied. He appealed to the Unemployment Insurance Appeal Board. In his appeal Gallagher admitted to his buying and selling stock options in a company that was regulated by the State Department of Insurance but claimed that he did not know that such conduct was prohibited at the time.

Accordingly, he contended, he should not be deemed culpable to the point that he was ineligible for unemployment insurance benefits.

The Board, however, denied Gallagher's appeal seeking unemployment insurance benefits after it determined that he had engaged in disqualifying misconduct. Gallagher sued, challenging the Board's ruling.

In the words of the Appellate Division,

It is well settled that "[a]n employee's apparent dishonesty or failure to comply with the employer's established policies and procedures can constitute disqualifying misconduct"

The Appellate Division said the record established that not only were such transactions were against the employer's policies, -- they were unlawful. Further, the job description of Gallagher's position and his responsibilities required him to understand the Insurance Law.

In effect, the court said that Gallagher, serving as a Senior Insurance Examiner, would be deemed to have knowledge of the relevant Insurance Department policies and the Insurance Law.

Under the circumstances, said the court, substantial evidence supports the Board's decision that Gallagher knew or should have known that his actions were prohibited. It sustained the Commission's decision and dismissed Gallagher's appeal.