Requiring employees to submit to a “dog-sniffing test” for illegal drugs

Requiring employees to submit to a “dog-sniffing test” for illegal drugs

Correction Officers’ Benevolent Assoc. v City of New York, USDC, Southern District of New York, 15-CV-5914

The New York City Department of Corrections established a “zero tolerance” drug policy providing for the termination of any employee, uniformed (i.e., correction officers), or civilian, who violated the policy. Its justification: the policy serves important functions by acting as a deterrent against drug traffic in its facilities and ensured that “the security of penal institutions is not breached.”

A federal judge dismissed the Correction Officers’ Benevolent Association’s [COBA] challenge to the New York City's requiring its correction officers to be searched when “drug-sniffing dogs” react positively to the individual. An officer could be suspended if he or she refused to submit to the search for contraband.

Judge Alison Nathan rejected COBA’s argument that searches aided by the drug-sniffing dogs violated its members' constitutional rights as well as New York State's Civil Service Law.

Judge Nathan ruled that COBA cannot claim its member's constitutional rights were being violated by their employer’s efforts to detect individuals attempting to transport drugs into the facility in violation of the law and the controlling Collective Bargaining Agreement. The court also rejected COBA claim that “drug-sniffing dogs” could produce “false positives.”

Other decision testing New York City’s Zero Tolerance Drug Policy include:

Roberts v New York City Office of Collective Bargaining, 113 AD3d 97, [Fire Department's determination of an appropriate penalty for illegal drug use relates to its primary mission of providing public safety];

New York City Fire Department v Armbruster, OATH Index #1350/12 [Firefighter who tested positive for cocaine in a random workplace drug test failed to demonstrate that he consumed the cocaine unknowingly];

Dept. of Corrections v Robbins, OATH 2030/99, [there are instances, particularly where a civilian employee is involved, when the “automatic penalty” under the department’s zero tolerance drug policy should not be applied].

The Doctrine of Election of Remedies bars an individual from attempting to litigate a matter involving the same issue earlier adjudicated in a different forum

The Doctrine of Election of Remedies bars an individual from attempting to litigate a matter involving the same issue earlier adjudicated in a different forum

Nizamuddeen v New York City Tr. Auth., 2016 NY Slip Op 04418, Appellate Division, Second Department
Appeal of Matthew Nadolecki, Decisions of the Commissioner of Education, Decision No. 16,894, 

The New York City Transit Authority, [MTA] hired Arif Nizamuddeen as a bus operator subject to a probationary period of employment. The Nizamuddeen had notified MTA that in 2006 he had been diagnosed with non-Hodgkin's lymphoma, which was in remission, when he was selected for employment.

After numerous extensions of Nizamuddeen’s period of probation, in March 2014 MTA terminated the Nizamuddeen’s employment “due to his unsatisfactory attendance record after multiple episodes of absences from work.”

Nizamuddeen filed a complaint with the New York State Division of Human Rights [SDHR] alleging that MTA terminated his employment because of his disability in violation of Executive Law Article 15, New York State’s Human Rights Law. SDHR dismissed Nizamuddeen’s discrimination claim on the merits.*

Nizamuddeen subsequently commenced a CPLR Article 78 proceeding against MTA in the Supreme Court, asserting allegations essentially identical to those set out in the complaint he had filed with SDHR. Supreme Court denied Nizamuddeen’spetition and dismissed the proceeding on the ground that Nizamuddeen was precluded from maintaining the proceeding by the election of remedies provision in Executive Law §297(9). 

Nizamuddeen appealed the Supreme Court’s determination.

The Appellate Division sustained the Supreme Court’s ruling, explaining that Executive Law §297(9) provides that an individual claiming to be aggrieved by unlawful discrimination on the part of the employer may sue in court "unless such person had filed a complaint [with the SDHR]." Thus the individual’s filing of a complaint with SDHR precludes the commencement of an action in the Supreme Court asserting the same discriminatory acts.* Nizamuddeen, said the Appellate Division, “is barred from maintaining this CPLR Article 78 proceeding by the election of remedies doctrine because the instant claims are based on the same allegedly discriminatory conduct asserted in [Nizamuddeen’s] complaint filed with [SDHR].”

The Appeal of Matthew Nadolecki, Decisions of the Commissioner of Education, Decision No. 16,894, provides another example of the application of the Doctrine of Election of Remedies.

The Commissioner said that “It is well settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter.”

Nadolecki brought a "Level 1" grievance in which he alleged that the district’s efforts to terminate him violated provisions set out in the controlling collective bargaining agreement and asserted that certain other contractual provisions regarding evaluations and observations were not adhered to. As relief, he sought an arbitration award directing the rescission of his termination. Both this and “the Level 2 grievance” were denied.

The Commissioner found that Nadolecki was attempting to raise the same issues in this appeal that he had raised in the contract grievance, rejecting his argument that because he only grieved school district’s “intention” to terminate his employment, he is entitled to commence an appeal on those same issues with respect to his "actual termination."  

The Commissioner explained that in his grievance Nadolecki’s claimed that the school district violated the provisions of the collective bargaining agreement and these was the same issues he presented in his appeal to the Commissioner. 

Accordingly, the Commissioner dismissed his appeal “for lack of jurisdiction,” noting that Nadolecki’sclaims “would be dismissed under the doctrine of election of remedies in any case.”  The prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner. 

* In contrast to SDHR’s dismissing Nizamuddeen’s complaint on the merits, had SDHR  dismissed his complaint for “administrate convenience” or had Nizamuddeen, prior to the hearing before the SDHR hearing officer, successfully requested that SDHR dismiss his complaint and annul his “election of remedies” to submit to the jurisdiction of SDHR, he could have pursued his Human Rights Law claim in a judicial forum.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04418.htm

Consolidation of Investigator titles in State Department and Agencies

Consolidation of Investigator titles in State Department and Agencies

New York State Department of Civil Service  

General Information Bulletin No. 16-03, Investigator Titles Consolidation

Scott DeFruscio, New York State Department of Civil Service Director of Staffing Services has posted New York State Department of Civil Service General Information Bulletin No. 16-03 explaining the changes to investigator titles described in a memorandum from the Department’s Director of Classification and Compensation dated May 20, 2016, and which took effect on June 16, 2016.

Bulletin No. 16-03 describes the Investigator series replacing the numerous titles currently in use and provides information developed to guide departments and agencies addressing the hiring and career mobility of employees in these new title series.

The result of the changes in the Investigator series on existing titles could result in a title consolidation, a reallocation, or a title change. Therefore, the impact of this change on employee mobility and eligible list usage may differ depending on relevant circumstances.

The Classification and Compensation memorandum is posted on the Internet at:

http://www.cs.ny.gov/businesssuite/News-and-Advisories/Classification-and-Compensation-Memos/index.cfm

General Information Bulletin No. 16-03 is posted on the Internet at:

https://www.cs.ny.gov/ssd/pdf/GIB16-03.pdf

 

Reimbursment of Medicare premiums paid by retirees participating in their former employer’s health insurance plan

Supreme Court, Broome County, granted Theodora Q. Bryant’s CPLR Article 78 application to annul a determination of Chenango Forks Central School District to terminate reimbursement of certain Medicare premiums.* 

The Public Employment Relations Board directed the School District to rescind its June 2003 memorandum in which it notified employees and retirees that it was terminating its practice of reimbursing Medicare Part B premiums.

In a companion case PERB ruled that the school district must reinstate its former practice of reimbursing retirees for Medicare Part B premiums -- the same relief sought in the current proceeding.

The Appellate Division noted that PERB's order in the companion case has been upheld by the Court of Appeals [see 2013 NY Slip Op 04039 (2013)]. Accordingly, Bryant received the full relief challenged by School District in the current appeal as a result of that determination, . Accordingly, the court ruled that the instant appeal is now moot.

As to argument advanced under color of an exception to the mootness doctrine, the Appellate Division held that the claimed exception “does not apply in that, although the issue advanced herein may recur and is significant, it is not likely to evade review.”

* The underlying facts are set forth in the Appellate Division’s prior decision (21 AD3d 1134 [2005]) and in the companion case brought by the Chenango Forks Central School District (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479 [2012], affd ___ NY3d ___, 2013 NY Slip Op 04039 [2013]). See, also, NYPPL’s summary of that decision posted on the Internet at http://publicpersonnellaw.blogspot.com/search?q=bryant

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04379.htm

Health insurance company’s claim for reimbursement for certain medical cost it incurred from a “no fault” automobile insurance carrier denied

Health insurance company’s claim for reimbursement for certain medical cost it incurred from the “no fault” automobile insurance carrier denied
Aetna Health Plans v Hanover Ins. Co., 2016 NY Slip Op 04658, Court of Appeals

In this action brought pursuant to the Comprehensive Motor Vehicle Reparations Act [Insurance Law §5101, et seq. -- the "No-Fault" Law] Aetna Health Plans alleged that it paid certain bills that should have been paid by Hanover Insurance Company, the no-fault insurer involved in this action, that were submitted to Aetna by the medical providers. Ultimately Hanover refused to reimburse Aetna for all of the payments Aetna made to the medical providers.

The resolution of this action by the Court of Appeals may, under certain circumstances, impact on the administration of General Municipal Law §§207-a and 207-c with respect to medial expenses paid by a municipality on behalf of a police officer or firefighter injured in the line of duty.

Aetna, as its insured’s assignee, sued Hanover seeking a court order directing Hanover to fully reimbursement it for all of the medical expenses it paid directly to the medical providers. Hanover, in response, moved to dismiss the complaint based upon Aetna’s “lack of standing,” contending that Aetna was not entitled to direct reimbursement because, citing 11 NYCRR 65-3.11(a),* Aetna was an insurance company and not a provider of health care services. Hanover argued that the only type of assignee permitted were those set out in the regulation and Aetna was not in privity of contract with Hanover.

The Court of Appeals agreed with Hanover, holding that that the Comprehensive Motor Vehicle Reparations Act [Insurance Law §5101, et seq. -- the "No-Fault" Law] does not contemplate that reimbursement for expenses paid by a “health insurer” is to be paid to the “health insurer” in contrast to providing for such a payment to be made to a “health care provider.”

The Doctrine of Unintended Consequences might have been be triggered by this ruling.

General Municipal Law §§207-a and 207-c, respectively, provide that the employer shall be liable for the payment of the salary or wages payable to a firefighter or police officer who suffers disability as the result of an injury or disease suffered in course of performing his or her official duties and for the cost of medical or hospital care or treatment furnished such personnel until the appropriate health authority or physician shall certify that such injured or sick fireman or police officer has recovered and is physically able to perform his or her regular duties.

Further, these sections provide that “Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality for reimbursement in such sum or sums actually paid as salary or wages and or for medical treatment and hospital care as against any third party against whom the policeman shall have a cause of action for the injury sustained or sickness caused by such third party.”

The Court of Appeals’ ruling in Aetna Health Plans could have an impact, in whole or in part, on a municipality as the police officer’s or firefighter’s employer in situations where the municipality seeks reimbursement for medical and, or, hospital expenses it incurred pursuant to the mandates of §§207-a and 207-c in providing “medical or hospital care” for police and fire personnel in situations where the Comprehensive Motor Reparations Act would otherwise be operative.

* 11 NYCRR 65-3.1, Applicability, provides that “The following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law;” and

11 NYCRR 65-3.11(a) provides “An insurer shall pay benefits for any element of loss other than death benefits, directly to the applicant or, when appropriate, to the applicant's parent or legal guardian or to any person legally responsible for necessities, or, upon assignment by the applicant or any of the aforementioned persons, shall pay benefits directly to providers of health care services as covered under section 5102(a)(1) of the Insurance Law, or to the applicant's employer for loss of earnings from work as authorized under section 5102(a)(2) of the Insurance Law. Death benefits shall be paid to the estate of the eligible injured person.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04658.htm

The term “race” includes ethnicity for purposes of 42 USC 1981 and Title VII

The term “race” includes ethnicity for purposes of 42 USC 1981 and Title VII

Village of Freeport and Andrew Hardwick v Barrella, USCA, Second Circuit, No. 14-2270-cv (L) et. al.

Christopher Barrella sued the Village of Freeport and its former mayor, Andrew Hardwick, [Hardwick] alleging Hardwick violated 42 USC 1981, Title VII of the Civil Rights Act of 1964, 42 USC 2000e, and the New York State Human Rights Law, New York Executive Law §290. Barrella alleged that Hardwick had not appointed him chief of police because Barrella was a white Italian-American, and that Hardwick had instead appointed a less-qualified Hispanic candidate to the position. A federal district court judge denied Hardwick’s motions for summary judgment as a matter of law. After a trial the jury returned a verdict in favor of Barrella.

Hardwick appealed the decision. The Second Circuit affirmed the judgment of the District Court insofar as it denied Hardwick's motions for summary judgment.

The Circuit Court explained that longstanding Supreme Court and Second Circuit precedents indicated that "race" includes ethnicity for purposes of  42 USC 1981, so that discrimination based on “Hispanic ancestry” or lack thereof constitutes racial discrimination under that statute. Further, said the court, "race" should be defined the same way for purposes of Title VII.

Accordingly, the Circuit Court reject Hardwick's argument that an employer who promotes a white Hispanic candidate over a white non-Hispanic candidate cannot have engaged in racial discrimination and affirmed the judgment of the District Court insofar as it denied Hardwick's' motion for judgment as a matter of law pursuant the Federal Rules of Civil procedure.

However, the Circuit Court ruled that the District Court erred in permitting "lay opinion testimony" that speculated as to Hardwick's reasons for not appointing Barrella. This, said the court, was a violation of Rule 701(b) of the Federal Rules of Evidence and because this case was factually close, this did not constitute “a harmless error.”

The judgment of the District Court was vacated and the matter remanded for a new trial consistent with the consistent with the decision of the Circuit Court of Appeals.

The decision is posted on the Internet at:

https://casetext.com/case/vill-of-freeport-andrew-hardwick-v-barrella

Exhausting administrative remedies

Exhausting administrative remedies
Ross v Blake, USSC, Docket No. 15-339

This decision by the United States Supreme Court considered an appeal involving the federal Prison Litigation Reform Act [PLRA], 42 USC 1997e(a) requirement that an inmate exhaust “such administrative remedies as are available” before bringing suit. The Supreme Court vacated the Fourth Circuit’s “unwritten 'special circumstances’ exception” to the exhaustion of administrative remedy as being inconsistent with the text and history of the PLRA,” explaining that “[m]andatory exhaustion statutes like the PLRA foreclose judicial discretion.”*

Of special interest to public employers and employees not operating in a penal environment was the Supreme Court’s observation that “that there are certain circumstances in which an administrative remedy, although officially on the books, is not available.”

The court then provided the following examples of an administrative procedure being illusory or unavailable:

1. Where the procedure operates as a dead end;

2. Where the appointing authority or the employee organization is unable or consistently unwilling to provide relief;

3. Where the administrative scheme is so opaque that it becomes, practically speaking, incapable of use; and

4. Where a grievance process is rendered unavailable should an appointing authority thwarts the employee from taking advantage of it through misrepresentation, or intimidation. 

Courts, as a general rule, will not consider lawsuits filed by public employees protesting some administrative determination unless the individual has exhausted his or her administrative remedies. The major exception to this rule: any attempt to exhaust the available administrative remedy would constitute an exercise in futility. Typically the courts apply this exception when it is decided that the administrative decision "is a foregone conclusion."

The exhaustion rule, however, is not inflexible and need not be followed where an agency's action is challenged as either unconstitutional or wholly beyond its grant of power [Watergate II Apartments v Buffalo Sewer, 46 NY2d 52] or where it is alleged that the administrative agency or process followed by the administrative agency violates the individual's constitutional rights to due process [Levine v Board of Education, 173 A.D.2d 619].

However, questions involving proper statutory interpretation and the reasonable interpretation of an agency's own regulations must first be raised within the agency's own administrative review process before being presented to the courts [Crumb v Broadnax, 178 A.D.2d 781].

An employee’s withdrawnal of his or her grievance has the effect of exhausting his or her administrative remedy. [Vega v Department of Correctional Services, 186 A.D.2d 340].

In Wilbur v Town of Rockland, 53 F.3d 542, the Circuit Court of Appeals, Second Circuit, said an employee suing the Town for alleged violations of her freedom of association under the First Amendment pursuant to 42 USC 1983 was not required to exhaust her state administrative remedies as a prerequisite to commencing a federal action, the general rule being that federal courts may not require exhaustion of administrative remedies as a "condition precedent" to 42 USC 1983 litigation.

From time to time courts are asked to settle questions about which officials or bodies have "primary jurisdiction" and should be turned to first to resolve employment disputes. In Hessney v Tarrytown Public Schools, 228 A.D.2d 954, we learn that the Commissioner of Education "is uniquely suited" to resolve questions concerned with the similarity of the duties of teaching positions and failing to initially submit the issue to him could be fatal to an individual's claim.

In any event, in cases in which the employee is alleged to have failed to exhaust his or her administrative remedy,” the employee typically has the burden of proving his or her seeking a judicial remedy falls within the ambit of one or more of the “exceptions to the rule,” frequently a difficult task.

* The court explained that PLRA contains its own, textual exception to mandatory exhaustion. Under §1997e(a), the exhaustion requirement hinges on the "availab[ility]" of administrative remedies. Thus there must exhaust available remedies, but one need not exhaust unavailable ones.

The decision is posted on the Internet at:

https://casetext.com/case/ross-v-blake