Request for reconsideration of an administrative determination does not toll the running of the statute of limitation

Request for reconsideration of an administrative determination does not toll the running of the statute of limitation

Matter of Bahr v MTA N.Y. City Transit Authority, Supreme Court, Kings County, 14 Misc.3d 1215(A)

The decision by Supreme Court Justice Francois A. Rivera in the Bahr case again points out that:

1. A proceeding pursuant to the statute of limitations set out in Article 78 of the Civil Practice Law and Rules (CPLR §217[1]) must be commenced within four months of the date that the decision complained of became final and binding; and

2. An administrative determination is considered final and binding for purposes of CPLR §217[1] when it has an impact on the aggrieved party and when the aggrieved party knows of the determination; and

3. An aggrieved party's requests for reconsideration of the administrative decision neither extends the statute of limitations nor tolls the statute of limitations from running.

Richard Bahr, Tier 4 member of the New York City Employees’ Retirement System [CERS] resigned from his position with the Metropolitan Transit Authority (MTA) in August 2000. CERS advised Bahr that he could vest his membership in the Retirement System if he had five years of credited member service and was within five years of normal retirement age when he left employment. Bahr qualified for vesting by purchasing enough service credit to meet the five years of member service requirement to be eligible to vest his retirement benefits..

New York City Transit Authority [NYCTA] provided employees such as Bahr with health insurance coverage through the New York State Health Insurance Program (NYSHIP). NYCTA also provided Tier 4 retirees with health insurance coverage upon retirement if the individual had at least ten years of service in NYCERS and was 62 years old or had five years of service in NYCERS and was 70 years old.

In August 2000, Bahr was not eligible to retire and resigned instead. He “vested” his eligibility for a retirement allowance upon attaining the minimum age for retirement.

When Bahr retired a few years later, the Employee Benefits Division of the New York State Department of Civil Service, which administers NYSHIP, wrote Bahr to advise him that he was eligible to continue his health insurance coverage with NYSHIP during his retirement. NYSHIP also told Bahr that he had been enrolled in the Empire Plan with dependent coverage. The cost Bahr’s health insurance coverage was paid by the participating employer, NYCTA.

As it turned out, the information NYSHIP sent to Bahr was incorrect.

NYCTA wrote to Bahr and told him that his post employment health benefits were granted in error. NYCTA explained that although Bahr qualified for a retirement allowance, having had five years of credited member service in CERS, he was ineligible for “retiree health insurance coverage” because his did not have at least ten years of credited service in the System. NYCTA then terminated Bahr’s health coverage with NYSHIP..

Supreme Court dismissed Bahr’s Article 78 petition as untimely.

According to the decision, in a letter dated July 23, 2004, NYCTA informed Bahr that his health coverage would end on August 1, 2004. The court pointed out that Bahr’s unsuccessful attempts to have NYCTA reconsider its decision did not extend or toll the four-month statute of limitations to commence an Article 78 proceeding.

The court said that although Bahr knew of NYCTA’s final determination on July 29, 2004, his petition challenging that decision served and filed more than four months after he knew of the final administrative determination. Accordingly, it was untimely.

Employee having a disability that poses a danger to co-workers is not “qualified” within the meaning of the ADA

Employee having a disability that poses a danger to co-workers is not “qualified” within the meaning of the ADA

Hutton v Elf Atochem North America, Inc., 273 F.3d. 884

According to the Hutton decision by the U.S. Circuit Court of Appeals for the Ninth Circuit, an individual with a disability who is shown to pose a danger to co-workers and others is not a “qualified individual” within the meaning of the Americans With Disabilities Act.

Norman Hutton, a diabetic, complained that Elf Atochem discriminated against him because of his disability in violation of the ADA and Oregon's disability discrimination law, [Oregon Revised Statutes, Sections 659.405 and 659.436 (1999).

Elf manufactures chlorine and related chemical products and had hired Hutton in 1986 with the knowledge that he had been diagnosed as a Type I diabetic. During his employment at Elf Hutton had a number of diabetic episodes. On one occasion he went into insulin shock while he was pumping chlorine from the storage tanks and had difficulty communicating with his co-workers.

Elf attempted to resolve the situation by having Hutton agree to meet specified conditions in order to continue his employment. These included his remaining under the care of a physician, providing evidence of a medical examination and laboratory blood assessment to Elf on a periodic basis; maintain a daily log related to his diet, his insulin intake, and certain other activities; monitor his blood sugar levels and to regulate his insulin intake in accordance the recommendations of a physician.

Hutton did not fully cooperate and ultimately he was suspended subject to his complying with the elements set out in the agreement. He sued, only to have a federal district court find that he was not a “qualified person with a disability” under the ADA. The court said that Hutton had failed to produced evidence demonstrating that he was able, with or without an accommodation, to perform the essential functions of his position -- chlorine finishing operator position.

In making its determination the court found that Hutton's diabetes created a risk of significant harm to himself and others, thereby disqualifying him from the position.

The Circuit Court agreed in part, holding that Elf's “direct threat” defense was valid insofar as his posing a threat to co-workers was concerned. It said that such a defense is permitted under the ADA, citing the “Defenses” section of the law.

The Equal Employment Opportunity Commission [EEOC] sets out the following guidelines concerning “direct threat” for the purposes of the ADA: Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

The court rejected EEOC's view that the direct threat defense is available to an employer with respect to its contention that the individual poses a safety risk to himself or herself. In contrast, the Ninth Circuit said that where, as in Hutton's situation, there is no dispute that a significant physical or mental lapse by Hutton as a result of a diabetic episode could result in substantial harm to his co-workers and others, the direct threat defense was available to Elf.

Whether or not an individual poses a “direct threat” to others is to be determined on the basis of an individualized assessment of the individual's present ability to safely perform the essential functions of the job supported by a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.

Among the factors to be considered in making such a determination:

1. The duration of the risk;

2. The nature and severity of the potential harm;

3. The likelihood that the potential harm will occur; and

4. The imminence of the potential harm.

Since a claim of “direct threat” is an affirmative defense, the employer bears the burden of proving that an employee constitutes a direct threat.

In Hutton's case there was no dispute that his employment posed some risk of potential harm to others. Was this risk of a sufficient magnitude and probability to disqualify Hutton from the chlorine finishing operator position?

Finding that an individualized assessment of each factor in the EEOC's four-factor test supports the conclusion that Hutton would pose a direct threat to his co-workers and others, the court sustained the lower court's dismissal of Hutton's complaint.

The court ruled that Elf had met the “direct threat” test established by EEOC with respect to Hutton's co-workers and other by demonstrating that (1) the duration of the risk would exist for as long as Hutton held the chlorine finishing operator's job; (2) the nature and severity of the potential harm is catastrophic -- many lives could be lost; (3) although the likelihood that the potential harm will occur is small, whether and when it will occur cannot be predicted; and (4) the imminence of the potential harm is unknown because of the unpredictability of Hutton's condition.

Union use of school e-mail in connection with a school board election

Union use of school e-mail in connection with a school board election

Appeal of John M. Himmelberg and Andrew J. Little, Decisions of the Commissioner of Education, Decision No. 15,490

Himmelberg and Little, unsuccessful school board candidates, challenge certain events related to a school board election. The Commissioner sustained the appeal in part.

Essentially, Himmelberg and Little complained that the president of the Fairport Education Association, the union representing the district’s teachers, used his district e-mail account to send e-mail to the district e-mail accounts of all union members advising the members of the union’s endorsement of two candidates for seats on the board. The e-mail also set forth the reasons the union chose not to endorse Himmelberg and Little.

In response to Himmelberg’s and Little’s objection, the school superintendent said that the union had the contractual right to use the district’s e-mail system to communicate with its members and that neither he nor the board endorsed the union president’s message.

After the election, the union distributed a newsletter to teachers via their district mailboxes. The newsletter included a message from the union president discussing the “hard core haters leading the effort against our school district.” While the newsletter did not refer to either Himmelberg or Little by name, it did name individuals the union president previously had identified as associated with them

Ultimately, Himmelberg and Little appealed to the Commissioner. The Commissioner granted the appeal in part. He said that although a board of education may provide informational material to the voters concerning a vote or election, the use of district resources to distribute materials designed to solicit favorable votes violates the constitutional prohibition against use of public funds to promote a partisan political position. Further, said the Commissioner, “Even indirect support, such as a school board giving a private organization access to its established channels of communication to espouse a partisan position has been deemed improper” and “lending indirect support to the private organization’s efforts to influence the vote, permitting such use of school facilities also lends an appearance of prohibited partisan activity by the school district, which should be avoided.”

Accordingly, the Commissioner found that under the facts of this case, the school district improperly permitted the union to use district resources to advocate the union’s position. Although the district asserted that the union’s use of e-mail was undertaken pursuant to its contract and was consistent with the parties’ longstanding practice, the Commissioner said that the parties’ collective bargaining agreement cannot authorize unconstitutional partisan use of district resources.

In contrast, the Commissioner said that “The post-election newsletter … did not constitute improper advocacy. While it contained strong, potentially divisive language, it was not directed at a specific question before the voters and was directed to union members only.

The Commissioner ordered the district to review its policies to ensure that adequate safeguards are in place to guard against improper partisan political activity.

Employee terminated after being found guilty of moral turpitude and dishonesty

Employee terminated after being found guilty of moral turpitude and dishonesty

Health and Hospitals Corporation v Saavedra, OATH Index #1404/11 [Modified as to the penalty to be imposed]

OATH Administrative Law Judge Faye Lewis ruled that a community associate could be sanctioned for off-duty misconduct based upon her admission that she took $4,680 from the City retirement system (NYCERS) that she knew did not belong to her.

The woman had taken a loan from NYCERS and a check was mailed to her even though the money had already been electronically deposited into her account. She cashed the check knowing she was not entitled to it.

ALJ Lewis found a nexus between the conduct and her job, i.e., she was able to obtain the pension loan from NYCERS because she works for the City of New York.

Judge Lewis noted that crimes of larceny are indicative of moral turpitude, which may constitute a basis for discipline.

As to the penalty to be imposed, the Administrative Law Judge found the employee’s expression of remorse at trial to be sincere and noted that the misconduct was not premeditated, but a crime of opportunity and recommended that a 60-day suspension without pay be imposed by the appointing authority.

However, Raquel Ayala, as the designee of Antonio Martin, Kings County Hospital Center's Executive Director, accepted Judge Lewis’ findings of fact but disagreed with Judge Lewis' recommended penalty of a sixty (60) day suspension and imposed the penalty of termination,* concluding that the employee had breached her employer’s trust which, said Ms. Ayala, is essential to anyone’s employment.

Ms. Ayala noted that her determination may be appealed by application to the Personnel Review Board or in accordance with Article 78 of the Civil Practice Law and Rules.

* The courts have ruled that the appointing authority may impose a harsher penalty than the penalty recommended by a disciplinary hearing officer [see Alamio v Ambach, 91 AD2d 695 and Henry v Village of Palmyra, 105 AD2d 1159 for examples of such actions and the standards to be followed in such cases].

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1404.pdf

Witness creditability determinations

Witness creditability determinations

CSEA Local 1000 [Vaziri-Cohen] v Tioga County, 288 AD2d 802

In an administrative disciplinary action, the hearing officer's determination is frequently based on his or her evaluation of the credibility of witnesses testifying at the disciplinary hearing. In the Vaziri-Cohen appeal the Appellate Division considered the issue of credibility in determining if substantial evidence supported the disciplinary determination resulting in Vaziri-Cohen's dismissal.

Susan Vaziri-Cohen was terminated after being found guilty of charges that she had falsified agency records, repeatedly failed to follow her superior's instructions and made demeaning remarks to a co-worker about her supervisor.

The Hearing Officer recommended that Vaziri-Cohen be dismissed from service based on a finding that her conduct had “hindered the mission of the agency and hurt its credibility” and that she “remained unwilling to concede that her behavior was unacceptable.”

CSEA appealed, contending that the hearing officer's findings were not supported by substantial evidence. The Appellate Division disagreed and dismissed the appeal.

The court pointed out that here the finding of the hearing officer with respect to the first charge -- falsification of official records -- turned on issues of credibility and inferences drawn by the hearing officer from the evidence presented. Finding that the conclusion drawn by the hearing officer was supported by both direct and circumstantial evidence, the court sustained the hearing officer's finding. Noting that both Vaziri-Cohen and her supervisor testified during the disciplinary hearing, the court said that “it was within the province of the Hearing Officer to implicitly reject the credibility of [Vaziri-Cohen's] exculpatory explanation.”

As to the second charge -- Vaziri-Cohen's alleged failure to follow work orders -- her supervisor testified that despite several successive directives by him concerning the inclusion of certain information in a client's medical record over the course of one week -- Vaziri-Cohen failed to add the information as directed.

Vaziri-Cohen, on the other hand, testified that she had made the changes directed by her supervisor. The court said that this conflict in the testimony given at the disciplinary hearing raised an issue of credibility implicitly resolved by the Hearing Officer's ruling against her.

As to the charge alleging Vaziri-Cohen made disparaging remarks about her superior to a co-worker, the Appellate Division said that substantial evidence supported the hearing officer's conclusion that, under the circumstances, her comments were “irresponsible and denigrating” and obviates any claim that they were made in good faith.

According to the decision, “the unrefuted testimony, including [Vaziri-Cohen's] admission, established that ... [she] made a denigrating and explicit comment to a co-worker about her supervisor ....”

As to the penalty imposed, dismissal, the Appellate Division wrote that “in view of the nature of the misconduct and insubordination involved in these charges, we see no basis upon which to disturb the penalty of dismissal, which we do not find was so disproportionate [to the offenses to which she was found guilty] as to be shocking to one's sense of fairness,” citing the Pell standard [Pell v Board of Education, 34 NY2d 222].

Creditability was also an issue in the Pelayo case [Pelayo v Safir, App. Div., First Dept., November 27, 2001]. Henry Pelayo, a New York City police officer, was dismissed from his position after being found guilty of administrative disciplinary charges alleging that he “knowingly gave false material testimony in felony court proceedings, and that he provided false information concerning the events underlying [those] criminal proceedings in departmental ... forms.”

The court said that Pelayo “challenges to the credibility determinations of the Assistant Deputy Commissioner are unavailing since, in an Article 78 proceeding, the reviewing court may not weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative fact-finder.”

Whistle blowing

Whistle blowing

Kahn v SUNY Health Center at Brooklyn, 288 AD2d 350

What is the whistle blower required to show in order to prevail? What is the targeted agency required to demonstrate in defending itself in a whistle blower case? These were among the issues considered by the Appellate Division when Mahmood Khan sued SUNY's Health Center at Brooklyn claiming it had violated Section 740 of the Labor Law.

In order to prevail in his Section 740 complaint, Kahn was required to plead and prove that the Health Center engaged in an activity, policy, or practice that constituted an actual violation of law, rule, or regulation. A critical factor in resolving this litigation concerned the nature of the proof required. The court said that an employee's good-faith reasonable belief that an actual violation of a law, rule, or regulation occurred is insufficient: he or she must show that there was a violation actually occurred.

Kahn had alleged that conditions in the Health Center's laboratories were unsafe due to poor air quality.

The Medical Center, however, produced affidavits and other proof demonstrating that during the period relevant to the Kahn's complaints of unsafe conditions, the Center's laboratories were not found to be in violation of any safety or health standards promulgated under the United States Occupational Safety and Health Act of 1970 or any regulations promulgated by the Department of Labor.

Accordingly, said the Appellate Division, the Health Center had come forward with sufficient admissible evidence to sustain its burden for granting its motion for summary judgment.

In contrast, said the court, Kahn failed to make the requisite factual showing to defeat the motion. He did not allege an actual violation of any specific law, rule, or regulation either in his complaint or his affidavit submitted in opposition to the defendant's motion for summary judgment.

The court rejected Kahn's “uncorroborated and unsubstantiated opinion that the laboratories were unsafe” holding that it amounted to no more than “a reasonable belief of a possible violation.” This, without proof, will not support a cause of action to recover damages under Labor Law Section 740.

Disability as a defense in disciplinary actions

Disability as a defense in disciplinary actions

Matter of Schlitz v Cavanagh, 2007 NY Slip Op 50026(U), Supreme Court, Suffolk County

The significant issue in the Schlitz case concerned the interplay of two different provisions of the Civil Service Law:

1. Serving disciplinary charges against an individual pursuant to Section 75; and

2. Placing an employee on leave pursuant to Section 72, which is triggered in cases of an employee’s inability to perform the duties of the position because of non-work related disease or disability.

In Penebre v Dzaluk, 51 AD2d 574, the Appellate Division ruled that §75 charges for misconduct should not have been served on a police officer but that the employer should have proceeded under §72, Ordinary Disability Leave instead. Penebre, said the court, “had performed successfully as a police officer for 13 years before his behavior markedly changed.” He became depressed and inattentive.

Under these circumstances, the Appellate Division said that serving Penebre with §75 charges for misconduct was misplaced. The court indicated the rather than initiate disciplinary action, the appointing authority should have utilized Section 72 which provides for the placement of an employee on a leave because of a disability, other than a disability resulting from an occupational injury or disease, in the event it is determined that he or she is unable to satisfactorily perform the duties of the position because of that disability.

Schlitz was served with disciplinary charges pursuant to Section 75. Before the conclusion of the disciplinary hearing, however, Schlitz was placed on Section 72 leave.

A physician was employed by the Town and asked to determine whether or not Schlitz was suffering from a mental health issue that affected his ability to perform his duties satisfactorily. The physician’s opinion, “given within a reasonable degree of medical certainty,” was that "any past misbehavior on the part of Mr. Schlitz would not have been because of a psychiatric condition."

Ultimately, Schlitz was found guilty of various instances of misconduct and the penalty imposed was demotion.

Schlitz appealed but withdrew his claim regarding the Section 75 determination by conceding that there was substantial evidence to justify the findings of misconduct and the penalty imposed. Instead, Schlitz contended that the Town knew that he was suffering from depression and that the filing disciplinary charges against him under these circumstances amounted to unlawful workplace discrimination against a person with a disability.

In addition, Schlitz argued that his employer was required to present the evidence of his depression at the §75 hearing as a defense, or in mitigation of the misconduct charge, on his behalf.

Justice Mayer ruled that Town was within its rights to conduct the §72 proceeding and suspend the §75 hearing pending the results of Schlitz’s medical evaluation. Further, said the court, once the Town had evidence that the misconduct alleged in the §75 charges and specifications were not due to mental disability, it had the right to move forward under §75.

As to Schlitz’s claim that he was the victim of “unlawful workplace discrimination against a person with a disability,” the court said that the medical evidence in this case was that Schlitz’s acts of misbehavior were not caused by a psychiatric condition. Justice Mayer ruled that “there is no admissible proof that the petitioner is, or ever was, mentally disabled, and the claim of workplace discrimination perpetrated by the Town by bringing the charges of misconduct against an allegedly disabled person is, therefore, without merit.”

In contrast to discipline/termination procedures, the basic concept underlying the use of Section 72 in disability related situations is the separation/rehabilitation/reinstatement of the employee.

Section 72.1 sets out the procedures to be followed by the appointing authority before an employee may be placed on leave for ordinary disability involuntarily.

Section 72.3 describes the appeal procedures, including recourse to the courts pursuant to Article 78 of the Civil Practice Law and Rules, available to an individual involuntarily placed on disability leave following a Section 72.1 hearing.

Section 72.5 provides an exception to the basic requirement that a Section 72.1 hearing must be concluded before the employee may be placed on Section 72 disability leave involuntarily based on the appointing officer determination that there is a "potential danger" if the employee is permitted to continue on the job.

If the employee is absent of Section 72 leave for more than twelve consecutive months, the appointing officer may, but is not required, to terminate the individual in accordance with the provisions set out in Section 73 of the Civil Service Law.