Audits and examination reports issued during the week ending March 17, 2018 by NYS Comptroller Thomas P. DiNapoli

Audits and examination reports issued during the week ending March 17, 2018 by NYS Comptroller Thomas P. DiNapoli 

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Office of Children and Family Services (OCFS): Financial Oversight of the Advantage After School Program (2016-S-39)
OCFS has some appropriate controls to limit program contract spending, including a maximum cost per child of $1,375 and a maximum allowable contract budget, which is calculated by multiplying providers’ maximum average daily attendance (MADA) by the $1,375 maximum per child. OCFS reimbursements to program providers did not exceed the maximum contract budget. However, there is a risk that providers can exceed the maximum cost per child if they serve significantly fewer children than their MADA but do not reduce their expenditures proportionally.

City University of New York (CUNY): Borough of Manhattan Community College (BMCC): Controls Over Bank Accounts (Follow-Up) (2015-S-93)
CUNY Central officials provided auditors a list of 23 bank accounts that they were aware of at BMCC. Seven of BMCC’s accounts were opened after CUNY’s bank authorization policy was established in 2008. However, CUNY did not have the required notification forms for one of these accounts. Auditors also identified two accounts that were not on CUNY’s list. These findings point to weaknesses in the monitoring of bank accounts, which increase the risk that BMCC personnel could conduct transactions using unauthorized accounts.

Department of Environmental Conservation (DEC): Generic PINs (2017-BSE7-01)
Auditors found DEC’s use of fuel cards does not comply with the Office of General Services’ Fuel Card Services Contract Guidelines, the State Vehicle Use Policy and DEC’s Policies and Procedures. DEC does not have sufficient controls in place to ensure all fuel purchases are appropriate.  DEC officials have not implemented a previous comptroller’s recommendation to assign unique PINs to individual employees, consistent with the guidelines.

Department of Health (DOH): Nursing Home Surveillance (Follow-Up) (2017-F-12)
An initial audit issued in February 2016, found DOH generally met its obligations to conduct Standard Health and Complaint surveys of nursing homes in accordance with federal and state requirements, but its enforcement policies and procedures needed to be strengthened to better protect the health and well-being of nursing home residents. In a follow-up report, auditors found DOH officials addressed the problems identified in the initial audit, having implemented all four of the prior audit’s recommendations.

Department of Health: Medicaid Program: Managed Care Organizations (MCOs): Payments to Ineligible Providers (2016-S-59)
During the audit period, the DOH launched efforts to improve its ability to detect and prevent payments by MCOs to ineligible providers. Notwithstanding those efforts, however, auditors identified certain weaknesses that, if properly addressed, could help better detect and prevent improper payments to ineligible providers. Auditors determined MCOs improperly paid $50.3 million during the audit period.

State Education Department (SED): Universal Pre-Kindergarten Program (UPK): Monitoring of Health and Safety Requirements (Follow-Up) (2017-F-30)
An initial audit report issued in December 2016 found SED did not directly monitor UPK providers for health and safety. Instead, SED relied on the school district operating the UPK program, or the Office of Children and Family Services, to ensure that UPK providers were complying with health and safety requirements. In addition, auditors found a wide disparity in the way UPK providers were being monitored for health and safety. In a follow-up, auditors found SED officials have made some progress in addressing the issues identified in the initial audit.

Metropolitan Transportation Authority (MTA): New York City Transit: Operational Training and Medical Assessments of Train Crews (2016-S-26)
Auditors found MTA’s New York City Transit unit is not in compliance with the requirements of the Induction Training curriculum established for its train crews. This lack of compliance may be tied to poor outcomes. For instance, all four train operators in the audit sample who had five or more operating incidents during the audit period had a history of failing grades and/or tests and quizzes missing from their training files. Auditors also found: train operators and conductors are not always meeting or completing refresher training requirements; many of their required annual hearing tests were either done late or not at all; train crews not in compliance with medical assessment requirements; and there were  inconsistencies with test scoring and file maintenance, including missing test files, ungraded tests, and missing attendance records.

Metropolitan Transportation Authority: Staten Island Railway (SIR): Operational Training and Medical Assessments of Train Crews (2017-S-71)
Auditors found SIR’s records were insufficient to document that training was satisfactorily completed. For a randomly selected sample of conductors who underwent Induction Training during the audit period, 61 percent of test papers were either not graded or missing. In addition, for the randomly selected sample of engineers, 81.7 percent of test papers for those newly hired and 41.7 percent of test papers for those promoted were either not graded or missing. Five of the ten conductors randomly sampled were required to take Book of Rules Refresher Training during the audit period. However, only two of the five had records that supported satisfactory completion of all exams. Auditors found similar results for the Signals Refresher Training, with only two of eight conductors having records to support satisfactory completion. Train crews were also not in compliance with medical assessment requirements. 

Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: WK Workday - Week of March 16, 2018

Click on text highlighted in color to access the full report.

Top labor and employment developments in February 2018

In huge EEOC win, appeals court finds discrimination on basis of transgender/transitioning status violates Title VII

Hospital once linked to church and still giving pastoral care may invoke ministerial exception

Not currently diagnosed with sleep apnea, fired dispatcher can’t show FMLA or disability bias

Fear obesity could lead to other conditions supports rejected applicant’s regarded-as disabled claim

Using election observer who was just fired for brandishing life-like toy gun didn’t taint union election

Mayor who fired long-term employee for ‘unacceptable’ email should have been granted qualified immunity

Disabled receptionist sexually assaulted by coworker awarded over $95K against unsympathetic hotel employer

Administrative Law Judge finds correction officer exercised reasonable and prudent judgment under the circumstances

Administrative Law Judge finds correction officer exercised reasonable and prudent judgment under the circumstances

Office of Administrative Trials and Hearings, Index No. 0005/18

A New York City Correction Officer was served with disciplinary charges alleging that the officer [1] had abandoned his station to confront an inmate; [2] failed to anticipate a use of force; [3] used excessive force against an inmate and [4] filed a false report.

The officer testified that he had left his post because he was unable to communicate with the inmate through "the window slot;" he did not contact a supervisor because believed he could use interpersonal skills to obtain the information; and it was not until the inmate struck the officer did the situation quickly escalate.

OATH Administrative Law Judge Alessandra F. Zorgniotti held that the officer’s testimony, which was corroborated by the video tape of the event, was credible. 

Finding that the officer exercised reasonable and prudent judgment under the circumstances, Judge Zorgniotti recommended that the appointing authority dismiss the disciplinary charges filed against the correction officer.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-005.pdf

Terminating a "long-time" provisional employee

Terminating a "long-time" provisional employee

Pena-Barrero v. City of New York, USCA Second Circuit, Docket #17-1286

Luis Pena-Barrero was employed in a variety of positions by the City of New York between 1994 and 2012. Although Pena-Barrero was eligible to take the appropriate required civil service exam on multiple occasions during his time as an employee of the City, he never did so and therefore remained a “pure provisional” employee.

§65(1) of the New York State Civil Service Law provides that "[n]o provisional appointment shall continue for a period in excess of nine months," and "in no case shall the employment of any such provisional appointee be continued longer than four months following the establishment of [an] eligible list" of candidates for the position."*

In 2008 Pena-Barrero's then employer, Department of Citywide Administrative Services [DCAS], implemented a plan to come into substantial compliance with §65 and issued a Notice of Examination in 2009 for the position provisionally held by Pena-Barrero, with the examination to take place in February 2010. Pena-Barrero did not apply to take the February 2010 examination. Subsequently an eligible list for the position in which Pena-Barrero was then serving was promulgated but, nevertheless, he remained provisionally employed by DCAS "long after the civil service list for his position was established"

On or about October 5, 2012 Pena-Barrero was informed that he would be terminated from his position, whereupon he initiated the CPLR Article 78 action contending that he was "impermissibly discriminated against, retaliated against, and subject to a hostile work environment, in violation of the federal Civil Rights Act and Family and Medical Leave Act [FMLA], the New York State Human Rights Law [NYSHRL], and the New York City Human Rights Law [NYCHRL]"

The Circuit Court of Appeals held that Pena-Barrero’s claims for race, national origin, and disability discrimination suffer from fundamental flaws in light of his failure to pass the civil service examination for his position. Accordingly, he could not demonstrate a prima facie case of discrimination because he was unable to show that he was qualified for appointment to the position. Further, opined the court, "Even assuming arguendo that Pena-Barrero could establish prima facie discrimination," his discrimination claims would nevertheless fail because he cannot establish that DCAS's proffered reason for his termination “is in fact pretext for unlawful discrimination.”

The court held that the record is clear that Pena-Barrero was terminated by action taken by DCAS’s Provisional Reduction Analysis Team and "there is simply no evidence" that his race, national origin, or disability played any role in his termination. In the words of the Circuit Court of Appeals, "As we have repeatedly explained ... there is no evidence that Pena-Barrero was terminated for any reason other than the fact that he was not qualified to remain employed by DCAS under the New York Civil Service Law.

* It is well settled that a provisional or temporary appointment cannot mature into a permanent one unless the incumbent satisfies the requirements set out in the Civil Service Law for permanent appointment to the position. See, for example, Matter of Gaiser, 15 AD2d 793; Russell v Hodges, CA2, 470 F2d 212. In contrast, decisions addressing the continuation in service of a provisional employee who becomes eligible for permanent appointment to the position include Matter of Roulette, 40 AD2d 611, Haynes v Chautauqua County, 55 NY2d 814, Becker v New York State Civil Service Commission, 61 NY2d 252 and La Sota v Green, 53 NY2d 491.

The decision is posted on the Internet at: 
http://www.ca2.uscourts.gov/decisions/isysquery/59b49e76-a052-42f7-b1b0-d7bac9c1165e/3/doc/17-1286_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/59b49e76-a052-42f7-b1b0-d7bac9c1165e/3/hilite/

In cases involving alleged abuse of a minor child courts owe “unusual deference” to a school official’s decision to report reasonably suspected abuse and neglect

In cases involving alleged abuse of a minor child courts owe “unusual deference” to a school official’s decision to report reasonably suspected abuse and neglect

Maco v. Baldwin Union Free School District et. al, USCA Second Circuit, Docket No.17-1539

Rhonda L. Maco, alleging that two Baldwin Union Free School District employees, Lori A. Presti, and Carrie Billitzki reported "potential child abuse to a state agency in retaliation for a complaint Maco made about Billitzki’s treatment of Maco’s minor child [Minor Child]," sued the Baldwin School District, Presti and Billitzki, [Defendants] in federal district court.

The district court dismissed Maco's complaint, holding that "no reasonable jury could find that the Defendants had a retaliatory motive or that Maco sustained an injury. Maco appealed the district court summary dismissal of her petition contending that "Defendants failed to show entitlement to judgment because a reasonable juror could find that Presti’s report of suspected child abuse was 'motivated or substantially caused' by Maco’s complaint about M.C.'s treatment" by Presti.

The Circuit Court sustained the district court's ruling. Rejecting Maco's arguments, the court explained  that it "owes 'unusual deference' to school administrators (or 'mandated reporters') who are required by law to report suspected child abuse, absent a 'clear showing of retaliatory or punitive intent,' where the administrator has 'a sufficient basis to suspect potential abuse,' the report is, as a matter of law, not retaliatory."

The decision states the Minor Child told Presti that Maco had checked Minor Child out of school and taken her home, where Maco had slapped her face multiple times and struck her three times with a belt. School records showed that Maco had signed Minor Child out of school for an appointment earlier that day. This, said the court, was a “sufficient basis to suspect potential abuse,” even though Presti’s pre-report investigation was relatively brief and did not include speaking to Minor Child’s teacher.

Although Maco, relying on decisions interpreting Title VII of the Civil Rights Act of 1964, argued that a retaliation claim can lie even where there are “objectively valid grounds” for the retaliatory action, the Circuit Court noted that in the specialized context of a school administrator’s decision to report suspected child abuse, a more demanding standard applies.

The court also rejected Maco’s assertion of protected speech involving a complaint she made concerning Billitzki in June 2013, ten months prior to Presti’s April 2014 report of suspected child abuse. Although Billitzki was admittedly upset with Maco’s complaint at the time, there was no evidence in the record that Maco’s complaint was a consideration when Presti reported the abuse.

Noting that it is true that there is no “bright line . . . beyond which a temporal relationship is too attenuated to establish a causal relationship” in retaliation cases, in this case the court observed that "the lapse of time between speech and adverse action (and the lack of evidence connecting them) negates any inference of causation," even if, as Maco suggests, Minor Child’s report of corporal punishment provided Defendants with their “first actual opportunity to retaliate.”

The Circuit Court also noted that Maco’s remaining evidence was "even less probative of retaliatory motive" with respect to the fact that Presti reported the suspected abuse without first discussing Minor Child’s behavior with the child's teacher, even though Presti allegedly should have known that Minor Child was a habitual liar.

Presti, said the court, correctly evaluated Minor Child’s credibility on the day in question as "Maco had, in fact, taken [Minor Child] out of school and struck her multiple times—this evidence is scarcely probative of motive." Although this and other factors set out in the decision, may, in some circumstances, "support an inference of retaliatory motive," in this instance the court said it concluded that Maco’s evidence falls short of the requisite “clear showing of retaliatory or punitive intent.”

The court, in consideration of the “unusual deference” it owes to school administrators’ “decisions to report reasonably suspected abuse and neglect,” concluded that Presti’s report was non-retaliatory as a matter of law."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e908bc3a-9153-4d7b-bc24-582a4862afd6/5/doc/17-1539_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e908bc3a-9153-4d7b-bc24-582a4862afd6/5/hilite/

Acquiring tenure in the position by tenure by "operation of law," sometimes referred to as tenure by estoppel or tenure by acquiesce

Acquiring tenure in a position by "operation of law," sometimes referred to as  tenure by estoppel or tenure by acquiesce
Matter of Mogilski v Westbury Union Free Sch. Dist., 2018 NY Slip Op 01063, Appellate Division, Second Department

Should the appointing authority fail, or neglect, to timely notify a probationer that he or she is to be terminated for failure to satisfactorily complete his or her probationary period  on or before the end of the individual's probationary period, the employee is deemed to have obtained tenure by "operation of law," sometimes referred to as  tenure by estoppel or tenure by acquiesce.

In Mogilski v Westbury Union Free School District the Appellate Division determined that Mogilski had obtained tenure in his position by "operation of law."

Westbury Union Free School District [District] appointed Anthony Mogilski as a Supervisor of School Facilities and Operations on September 21, 2015 subject to Mogilski's satisfactory completion of a 26-week probationary period scheduled to end March 21 next following.  On February 2, 2016, the District informed Mogilski that his probationary period was being extended for 12 days due to school closings for holidays, which, said the District, extended his probationary period through April 6, 2016.

The District's request for the extension was approved by the Nassau County Civil Service Commission [Commission] and on March 28 the School Board of Education adopted a resolution terminating Mogilski's employment "effective the last day of his probationary period, which is March 29, 2016 ...." A termination of employment letter was delivered to Mogilski on March 29.

On March 29, however, the District was informed by the Commission that it had incorrectly "authorized the extension" of Mogilski's probationary period for 12 days when the extension should have been 6 days, thereby resulting Mogilski'sprobationary period "officially" ending on March 29 rather than April 6.

Mogilskifiled an Article 78 petition seeking a court order reinstating him to his former position in which he alleged that the District exceeded its jurisdiction, and acted arbitrarily,  capriciously, and irrationally in extending his probationary period. He contended that the Commission's rules with respect to a probationer's term being extended for authorized or unauthorized absences on "workdays" does not authorize such an extension for school closings on holidays.*

Although Supreme Court denied Mogilski's petition, holding it was not an abuse of discretion for the District to treat absences resulting from "holiday" school closings the same as absences for sick leave, vacation, jury duty, and other authorized or  unauthorized absences for purposes of extending a probationer's term, the Appellate Division disagreed and reversed Supreme Court's ruling.

The Appellate Division explained that the relevant Commission rule indicated that "it is proper to extend a probationary term by the number of 'workdays' an employee is 'absent' or 'workdays' an employee missed due to sick leave, vacation, or jury duty" and that this court had previously ruled "it is rational to interpret 'workdays' to include 'all of those days when [Mogilski's] presence would normally have been required.'" However, said the court, a school closing due to a holiday "is not a day when [Mogilski's]would have required" to work and the extension of his probationary period in consideration of the school being closed due to a holiday was improper.

The court directed the District to reinstate Mogilski to his position of Supervisor of School Facilities and Operations with back pay and all benefits of his employment.

* 4 NYCRR 4.5(g), addressing absence during probationary term with respect to employees of the State as the employer, in pertinent part, provides that "Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term ... Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term."

Many local civil service commissions and personnel officers have adopted a similar rule.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01063.htm