Determining the back pay due an individual terminated from his or her employment upon reinstatement by court order

Determining the back pay due an individual terminated from his or her employment upon reinstatement by court order

Torpey v Town of Colonie, N.Y., 2013 NY Slip Op 04085, Appellate Division, Third Department

With respect to back pay to be awarded in the event a discharged employee is reinstated by action of a civil service commission or personnel officer or a court, prior to its amendment in 1985 Civil Service Law §§76 and 77 provided that the amount of back pay due an individual found to have been unlawfully terminated from his or her position was to be reduced by the amount of compensation he or she may have earned in any other employment or occupation following his or her termination, together with any unemployment insurance benefits he or she may have received during that period.

In 1985 §§76 and 77 of the Civil Service Law, which apply to certain employees in the classified service of a public employer, were amended [Chapter 851, Laws of 1985] and currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The clause providing for a "reduction" in the amount to be paid for any compensation earned in other employment or occupation following his or her termination was eliminated.

The issue in Torpey: May the compensation due employees reinstated to their former positions in the classified service pursuant to a court order be “reduced by” their earnings in other employments during the period in question.

The employees involved had been terminated from their long-term employment with the Town of Colonie on the ground that they were public officers who were required to, but did not meet, the residency requirement set out in the Public Officers Law. Following their termination, they accepted other employment with the Town for which there was no residency requirement.

The employees then challenged their termination and asked Supreme Court to reinstate them to their former positions "with full back pay, benefits and emoluments of employment."

Supreme Court determined that the employees had been erroneously terminated, finding that the Town had not shown that they were public officers subject to the residency requirements. The court granted the employees’ petition, ruling that the employees were "entitled to be reinstated to their former positions and to all back pay and associated benefits to which they would have been entitled had they not been improperly terminated."

Subsequently a dispute arose between the employees and the Town regarding, among other things, the meaning of the court's directive that employees were entitled to "all back pay," i.e., whether the back pay awards was to be “reduced by” the employees' earnings while employed by the Town as laborers, as the Town claimed, or whether they were entitled to full back pay without any such offset, as the employees argued.

The employees then asked Supreme Court “to resettle and/or clarify the court's prior judgment regarding back pay.” Supreme Court denied their motion, finding it represented an improper attempt to amplify and expand upon the court's prior decision and the employees appealed.

The Appellate Division agreed with Supreme Court, concluding that the employees’ motion “was one to resettle and/or clarify Supreme Court's prior judgment regarding back pay.”  Such a motion, said the court, is designed "not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification or to make the [judgment] conform more accurately to the decision.” Such motions rest on the inherent power of courts to "cure mistakes, defects and irregularities that do not affect substantial rights of [the] parties."

In this instance the Appellate Division decided that the employees’ motion in Supreme Court sought to amplify and substantively amend, not merely to clarify, Supreme Court's prior judgment relating to back pay, “by invoking for the first time Civil Service Law provisions* in support of their argument that the back pay award should not be offset by earnings as Town employees during the period in which they had been improperly terminated, points which should have been raised and argued before a determination was rendered on their petition.”

The Appellate Division’s rational: “Such an offset would directly affect the amount of back pay owed by the Town and, as such, would clearly have ‘alter[ed] [a] substantial right[] of the parties.’”

Holding that “Under established precedent, no appeal lies from the ‘denial of a motion to resettle [or clarify] a substantive portion of an order,'" the Appellate Division dismissed the employees’ appeal.

* Presumably the Appellate Division did not view the employees’ reinstatement by Supreme Court as being within the ambit of Civil Service Law §76.3 or  §77 and thus the provisions of neither §76.3 nor §77 were operative in this instance as a matter of law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04085.htm

A delay in a disciplinary hearing resulting from an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

A delay in a disciplinary hearing resulting from an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

OATH Index No. 1355/17

A civil engineer failed to report for a mandatory overtime shift and a medical assessment of her fitness for duty, and refused to submit documentation concerning these matters when directed to do so.

One of the issues considered by the ALJ was the employee claim that she was entitled to be paid for certain absence without pay in excess of the statutory 30-days suspension without pay authorized by Section 75 of the Civil Service Law notwithstanding the fact that she was place on such leave without pay in excess of 30 days when her disciplinary hearing was adjourned at her request because her attorney was not available.

The Civil Service Law provides that an employee may be suspended without pay for a period not exceeding thirty days pending the determination of charges of incompetency or misconduct and the employee may recover back pay for any such suspension exceeding 30 days, provided that the delay is not the employee’s fault. In this instance the appointing authority argued that the employee should not be paid for delays resulting from its agreeing to an adjournment of the hearing at the employee's request.

The appointing authority contended that it did not object to the employee's hearing adjournment request "provided that there was no pay liability" against the employer attributable to the employee's  request for the adjournment. Thus, argued the appointing authority, the employee is not entitled to back pay for any period of suspension without pay attributable the adjournment of the hearing.

Judge Gloade, explained that "This tribunal may recommend restoration of pay for any period of pre-trial suspension that exceeds 30 days," citing Teachers’ Retirement System v. Barrett, , OATH Index No. 1210/99," and, citing Dep’t of Environmental Protection v. D’Amore, OATH Index No. 1307/17, said that an Administrative Law Judge may recommend payment of back pay if employee was placed on an involuntary disability leave prior to a hearing without justification. Further, said the ALJ, "Where an employee is suspended for more than 30 days, he or she may recover back pay for the period of suspension exceeding 30 days, provided that the delay in disposing of the charges is not the employee’s fault.

In contrast, said Judge Gloade, a delay occasioned by an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay. "While the employee's request for adjournment appears to be bona fide, that does not exempt her from the general rule that the party responsible for the delay bears the cost."

Citing Transit Auth. v. Danese, OATH Index No. 1043/95, ALJ Gloade concluded that it was unclear from the record whether the employee was entitled to back pay and declined to undertake an accounting to determine how much, if any, back pay the employee would be entitled to receive "as it was beyond the purview of the tribunal."

The appointing authority adopted the findings, and the penalty recommended, by the ALJ.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1355.pdf

A delay in a disciplinary hearing resulting from an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

A delay in a disciplinary hearing resulting from an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

OATH Index No. 1355/17

A civil engineer failed to report for a mandatory overtime shift and a medical assessment of her fitness for duty, and refused to submit documentation concerning these matters when directed to do so.

One of the issues considered by the ALJ was the employee claim that she was entitled to be paid for certain absence without pay in excess of the statutory 30-days suspension without pay authorized by Section 75 of the Civil Service Law notwithstanding the fact that she was place on such leave without pay in excess of 30 days when her disciplinary hearing was adjourned at her request because her attorney was not available.

The Civil Service Law provides that an employee may be suspended without pay for a period not exceeding thirty days pending the determination of charges of incompetency or misconduct and the employee may recover back pay for any such suspension exceeding 30 days, provided that the delay is not the employee’s fault. In this instance the appointing authority argued that the employee should not be paid for delays resulting from its agreeing to an adjournment of the hearing at the employee's request.

The appointing authority contended that it did not object to the employee's hearing adjournment request "provided that there was no pay liability" against the employer attributable to the employee's  request for the adjournment. Thus, argued the appointing authority, the employee is not entitled to back pay for any period of suspension without pay attributable the adjournment of the hearing.

Judge Gloade, explained that "This tribunal may recommend restoration of pay for any period of pre-trial suspension that exceeds 30 days," citing Teachers’ Retirement System v. Barrett, , OATH Index No. 1210/99," and, citing Dep’t of Environmental Protection v. D’Amore, OATH Index No. 1307/17, said that an Administrative Law Judge may recommend payment of back pay if employee was placed on an involuntary disability leave prior to a hearing without justification. Further, said the ALJ, "Where an employee is suspended for more than 30 days, he or she may recover back pay for the period of suspension exceeding 30 days, provided that the delay in disposing of the charges is not the employee’s fault.

In contrast, said Judge Gloade, a delay occasioned by an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay. "While the employee's request for adjournment appears to be bona fide, that does not exempt her from the general rule that the party responsible for the delay bears the cost."

Citing Transit Auth. v. Danese, OATH Index No. 1043/95, ALJ Gloade concluded that it was unclear from the record whether the employee was entitled to back pay and declined to undertake an accounting to determine how much, if any, back pay the employee would be entitled to receive "as it was beyond the purview of the tribunal."

The appointing authority adopted the findings, and the penalty recommended, by the ALJ.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1355.pdf

Deeming an employee's unauthorized work absences from work "a voluntary resignation"

The employer had deemed the employee's unauthorized work absences from work "a voluntary resignation from his employment" and terminated him from the position. The employee's union demanded the employer's action be submitted to arbitration.

The arbitrator ruled in favor of the employee organization, directing the employee's reinstatement with back salary and benefits. The employer appealed the arbitrator's ruling pursuant to Article 75 of the CPLR. 

The Appellate Division ultimately confirmed the arbitrator's award, reversing so much Supreme Court's decision that vacated the arbitrator's awarding the employee back pay and benefits, thus reinstating and affirming the arbitrator's award as promulgated. The Appellate Division's ruling is set out below.

N.B. Former 4 NYCRR 5.3(d), repealed effective February 27, 1979, provided that a state officer or employee absent for a period of ten or more days without an explanation could be deemed to have resigned from his position. In Bernstein v Industrial Commissioner, 57 AD2d 767, 4 NYCRR 5.3(d) was held to violate the employee's right to due process. See, also, Laurido v Simon, 489 F. Supp. 1169.

Notwithstanding Bernstein, such a provision has been held lawful if the parties had agreed to memorializing such a term or condition of employment in a collective bargaining agreement as a result negotiations within the meaning of Article 14 of the Civil Service Law. Typically the courts will decline to void the provisions of such agreements except in cases involving a violation of a strong public policy. 

 

Matter of County of Albany (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO,  Albany County Local 801)

2023 NY Slip Op 01828

Decided on April 6, 2023

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:April 6, 2023

535386

In the Matter of the Arbitration between County of Albany, Respondent, and Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Albany County Local 801, et al., Appellants.

Calendar Date:February 16, 2023
Before:Egan Jr., J.P., Clark, Pritzker, Ceresia and Fisher, JJ.

Daren J. Rylewicz, Civil Service Employees Association, Inc., Albany (Scott Lieberman of counsel), for appellants.

Eugenia Koutelis Condon, County Attorney, Albany (Yorden C. Huban of counsel), for respondent.

 

Pritzker, J.

Appeal from an order of the Supreme Court (Christina L. Ryba, J.), entered March 14, 2022 in Albany County, which partially granted petitioner's application pursuant to CPLR 7511 to vacate an arbitration award.

Respondent Michael J. Frazier was an employee of petitioner within the Department of General Services. In May 2020, after being absent from work despite not having any accrued sick leave and having not been approved for medical leave under the Family Medical Leave Act (hereinafter FMLA),^[FN1] Frazier was served with a notice of discipline charging him with unauthorized work absences and informing him that such action was interpreted as a violation of the Rules and Regulations of Albany County Employees (hereinafter the rules) and the collective bargaining agreement (hereinafter the CBA) between respondent Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Albany County Local 801 (hereinafter CSEA) and petitioner. Considering Frazier's unauthorized work absences and lack of medical certification, petitioner interpreted Frazier's actions as a voluntary resignation from his employment. Thereafter, CSEA filed a grievance on Frazier's behalf, demanding that petitioner arbitrate the terms of Frazier's employment. Following an arbitration hearing, the arbitrator found that Frazier's absence did not constitute just cause for disciplinary action under the CBA.^[FN2] As such, the arbitrator granted CSEA's grievance and awarded Frazier reinstatement as well as back pay and benefits. Petitioner subsequently commenced this proceeding pursuant to CPLR article 75 to vacate the arbitrator's award on the ground that the arbitrator exceeded her authority by awarding Frazier back pay and benefits. Thereafter, respondents joined issue and requested that Supreme Court deny the petition. The court found no basis to disturb the arbitrator's finding that Frazier's actions did not amount to a voluntary resignation yet held that the arbitrator exceeded her authority by awarding Frazier back pay and benefits from the time of his termination to his reinstatement because the imposition of such remedy exceeded the stipulated issue as set forth by the parties. Accordingly, the court partially granted the petition and vacated that portion of the arbitrator's award. Respondents appeal.

Respondents assert that Supreme Court erred in partially granting the petition and vacating the arbitrator's award of back pay and benefits based upon a determination that said award exceeded the arbitrator's authority because doing so was beyond the scope of the two-part stipulated issue. We agree. Here, the stipulated issue reads as follows: "Did [petitioner] have just cause to discipline [Frazier]? If so, what is the appropriate penalty, if any?" The court interpreted this to mean that the arbitrator could only proceed to the second question and determine a penalty if she found that petitioner did have just cause to discipline Frazier, which the arbitrator determined it did not. Therefore, the court found that the arbitrator acted in excess of her authority. Significantly, petitioner did not submit this theory as a basis for vacating the award; rather, it only asserted that the award of back pay and benefits should be vacated because the arbitrator exceeded her authority based solely on the fact that Frazier wouldn't have been entitled to these benefits if out on FMLA leave, which he was in the process of applying for. As such, because Supreme Court sua sponte reached this dispositive issue, respondents were unable to address it. "The lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process" (Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 54 [2d Dept 2014]; see Frank M. Flower & Sons, Inc. v North Oyster Bay Baymen's Assn., Inc., 150 AD3d 965, 966 [2d Dept 2017]). Thus, we cannot sustain Supreme Court's partial granting of the petition on this ground (see Matter of Level 3 Communications, LLC v Essex County, 129 AD3d 1255, 1256 [3d Dept 2015], lv denied 26 NY3d 907 [2015]).^[FN3]

Inasmuch as Supreme Court denied back pay and benefits based on a procedural issue, given that the record is fully developed and in the interest of judicial economy, we deem it appropriate to decide that portion of the petition seeking to vacate the award of back pay and benefits on the merits, rather than remitting the matter to Supreme Court (see generally Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d at 56). To that end, "[j]udicial review of arbitral awards is extremely limited. Pursuant to CPLR 7511 (b) (1), a court may vacate an award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power" (Matter of Czerwinski [New York State Dept. of Corr. & Community Supervision], 173 AD3d 1325, 1326 [3d Dept 2019] [internal quotation marks and citations omitted]; see CPLR 7511 [b] [1] [iii]). "Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact" (Matter of Barron [State of N.Y. Off. of Mental Health], 135 AD3d 1111, 1112 [3d Dept 2016] [internal quotation marks and citations omitted], lv denied 27 NY3d 905 [2016]). "[I]t is well settled that an arbitrator has broad discretion to determine a dispute and fix a remedy, and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself" (Matter of New York State Dept. of Corr. Servs. [New York State Corr. Officers & Police Benevolent Assn., Inc.], 100 AD3d 1066, 1068 [3d Dept 2012] [internal quotation marks and citations omitted]; see Matter of New York State Governor's Off. of Empl. Relations [New York State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO], 242 AD2d 756, 756 [3d Dept 1997]).

We discern no basis to vacate the arbitrator's award as to back pay and benefits. Notably, the CBA does not contain "a specifically enumerated limitation on the arbitrator's power" (Matter of Barron [State of New York Office of Mental Health], 135 AD3d at 1112). In fact, it does not explicitly limit the arbitrator's authority in any way other than stating that the arbitrator does not have the power to "amend, modify or delete any provision of the CBA," which does not set any limitations on the arbitrator's power to order the remedy that he or she sees fit (see Matter of Shenendehowa Cent. School Dist. Bd. of Educ. [Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864], 90 AD3d 1114, 1117 [3d Dept 2011], affd 20 NY3d 1026 [2013]; compare Matter of Spratley [New York State Dept. of Corr. & Community Supervision], 180 AD3d 1301, 1302 [3d Dept 2020]; Matter of Kocsis [New York State Div. of Parole], 41 AD3d 1017, 1019 [3d Dept 2007]). We find unpersuasive petitioner's argument that an award of back pay and benefits to the date of termination is in excess of the arbitrator's authority because it was ordered for a time period during which Frazier was only entitled to unpaid FMLA leave. Significantly, no proof was set forth regarding the dates, or any other information, as to the FMLA leave, thus any argument regarding such is speculative, at best. Moreover, since FMLA leave had not been granted prior to termination, once Frazier was terminated this issue became irrelevant. Therefore, the arbitrator's award should be confirmed.

Egan Jr., J.P., Clark, Ceresia and Fisher, JJ., concur.

ORDERED that the order is modified, on the law, with costs, by reversing so much thereof as vacated the award of back pay and benefits; said award reinstated and, as so modified, affirmed.

Footnotes

Footnote 1: Frazier had submitted an FMLA application and was required to submit certain medical certification by May 6, 2020, but he did not do so and was placed on unapproved leave status.

Footnote 2: Neither the grievance nor the transcript of the virtual arbitration hearing were submitted to Supreme Court and have not been included in the record on appeal.

Footnote 3: Were we to address this issue on the merits, we would find that, although awarding Frazier a remedy if the arbitrator found that petitioner did not have just cause to discipline him is not explicitly set forth in the stipulated issue statement, "[n]either the arbitration clause of the [CBA] nor the stipulated submission of issues for arbitration contained a specifically enumerated limitation on the arbitrator's power" (Matter of Barron [State of N.Y. Off. of Mental Health], 135 AD3d 1111, 1112 [3d Dept 2016], lv denied 27 NY3d 905 [2016]). Rather, the issue framing left open the possibility that the arbitrator would find that petitioner lacked just cause, sustain the grievance and thereafter would be "empowered to do justice and the award may well reflect the spirit rather than the letter of the [stipulation and the CBA]" (Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 418 [1978] [internal quotation marks and citation omitted]). Indeed, it defies logic to have the arbitrator determine that petitioner lacked just case for termination and to not fashion any remedy for Frazier, especially given that the grievance requested that he be "made whole." Moreover, as to the remedy, petitioner is only challenging the back pay and benefits, but not reinstatement, which, given petitioner's current limited view of the stipulated issue statement, would have also been in excess of authority. 

Suspension without pay

Suspension without pay
2014 NY Slip Op 04860, Appellate Division, First Department

The employee [Plaintiff] was suspended without pay indefinitely pursuant to Article III(9) of the collective bargaining agreement (CBA) based on his failure to provide a proper accounting of funds allocated to him in connection with his employment. He remained suspended without pay until he retired on November 30, 2004. 

The disciplinary arbitration panel found that Plaintiff had been improperly suspended without pay for more than 30 days, in violation of the CBA, and awarded him wages and benefit contributions for the period from 30 days after his suspension through the date of the first arbitration hearing, which was held September 29, 2005. The employer filed a CPLR Article 75 petition challenging the arbitration award.

Noting that Civil Service Law §75(3) was incorporated into the CBA under Article XVII(4)(B), the Appellate Division agreed with the employer that since the CBA and Civil Service Law §75(3) both permit back-pay awards only for periods of improper suspension, even if the grievant was suspended improperly and held that the arbitrators exceeded their power by awarding Plaintiff back pay for a period of time following his voluntary retirement.

Accordingly, the Appellate Division unanimously modified the arbitration award, on the law, to define the period for the purposes of awarding Plaintiff back pay and benefits ran from 30 days after Plaintiff’s suspension without pay through the date of the Plaintiff's retirement rather than for period running from 30 days after his suspension without pay through the date of the first arbitration hearing,

In effect the court ruled that an individual improperly suspended without pay was entitled to back pay for any suspension without pay in excess of the 30-day period authorized by §75(3) only through the effective date of his or her separation from service such as the result of his or her retirement, resignation or death. Presumably the same limitation would apply in situations where the individual services would otherwise terminate by operation of law, rule or regulation while he or she was improperly suspended without pay.

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An arbitral awards may vacated, in whole or in part, if it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power

An individual [Petitioner] employed by the Department of Corrections and Community Supervision [DOCCS] was suspended without pay and subsequently served by DOCCS with a notice of suspension charging her with six instances of misconduct and imposing a penalty of dismissal.*

Petitioner waived her right to an agency-level hearing and the matter proceeded directly to arbitration. Following a hearing, the arbitrator, among other things, found Petitioner guilty of two of the charges of misconduct and imposed a one-month suspension as a penalty. The arbitrator also awarded Petitioner back pay for the period of interim suspension prior to the hearing. When DOCCS failed to pay Petitioner back pay for the time of her interim suspension, Petitioner commenced a CPLR Article 75 proceeding to confirm the award. DOCCS cross-moved to vacate the award insofar as it required the payment of back pay for the period of the interim suspension.

Supreme Court confirmed the award, denied DOCCS' cross motion and DOCCS appealed the court's ruling, contending that the arbitrator's award of back pay for the period of interim suspension exceeded his authority.

The Appellate Division overturned the Supreme Court's ruling, pointing out that:

1. "Judicial review of arbitral awards is extremely limited [but] a court may vacate an award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power";

2.  "[A]lthough an arbitrator's interpretation of contract language is generally beyond the scope of judicial review, where a benefit not recognized under the governing CBA is granted, the arbitrator will be deemed to have exceeded his or her authority"; and

3. "[I]f the arbitrator imposes requirements not supported by any reasonable construction of the CBA, then the arbitrator's construction[,] in effect, made a new contract for the parties, which is a basis for vacating the award."

Here, the Appellate Division noted, "the arbitrator's award of back pay for the period of interim suspension was based upon a determination that DOCCS lacked probable cause to suspend petitioner." However, said the court, the relevant provision set out in the CBA states that "[s]uspensions without pay . . . shall be reviewable by a disciplinary arbitrator . . . to determine whether the [respondent] had probable cause."

Citing Matter of Livermore-Johnson [New York State Dept. of Corr. & Community Supervision], 155 AD3d at 1394, the court pointed out that it had previously held that hearing evidence should be considered by the arbitrator in determining probable cause." Here, however, the Appellate Division found that the arbitrator "did not rely on the hearing evidence to reach this determination, but instead relied solely on the information contained in the notice of suspension and referenced the Livermore-Johnson decision, which is an earlier decision that he rendered regarding the same CBA but a different employee."

In the words of the Appellate Division, "[i]n Livermore-Johnson, the arbitrator concluded that the suspension notice at issue in and of itself did not establish probable cause [and when reviewed by this Court] we affirmed Supreme Court's judgment vacating the arbitrator's award, holding that the arbitrator exceeded his authority by failing to consider hearing evidence and imposing the new requirement that probable cause be established in the notice of suspension."

Finding the record underlying the instant action "makes clear that the same error occurred here," the Appellate Division said that that portion of the order and judgment that orders back pay for [Petitioner] during the period of interim suspension must be vacated and the matter remitted for a rehearing on that issue."

* The terms of Petitioner's employment were governed by a collective bargaining agreement [CBA] that contained procedures that DOCCS was required to follow when seeking to discipline an employee.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04526.htm

Claim for back pay denied

Claim for back pay denied

Golomb v. Board of Education, 106 Misc. 2d 264, 92 A.D.2d 256

A probationary teacher was terminated by the principal. One year later she was reinstated by the Chancellor of the Board of Education, City of New York because he did not agree with the recommendation to terminate.

The teacher then sued for back salary.

The Court denied the award of back pay stating that the teacher “has no basis for her claim to entitlement of back pay upon her reinstatement...An employee who has not worked has not delivered consideration for the payment of wages. Thus in the absence of a statute requiring the payment of back pay upon reinstatement, a public body is not required to pay back wages since such a payment would be an unconstitutional gift of funds.”

 It should be noted, however, that where there has been an unlawful removal from service, back pay is authorized upon reinstatement. In these cases the Court found that the teacher had no independent right to permanent employment. Her termination was viewed as lawful and therefore she was not entitled to back salary.

Disciplinary penalty reduced by court

Disciplinary penalty reduced by court
Catena v Village of Southampton, App. Div., 289 A.D.2d 487

The Village of Southampton dismissed Jeffrey Catena from his position as maintenance mechanic. Although Catena admitted his guilt, he appealed, contending that the penalty of dismissal was too harsh under the circumstances.

As a result Catena won a court order directing his reinstatement to his former position. In addition, the Supreme Court justice directed that Catena be given 60 days back pay and benefits. The Village appealed, contesting only that portion of the court's ruling requiring it to pay Catena 60 days of back pay.

The Appellate Division modified the back pay award, holding that the Village only had to pay Catena 30 days of back pay.

The Appellate Division said although Catena had admitted his guilt, which was supported by substantial evidence, "under all of the circumstances, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one's sense of fairness" citing Pell v Board of Education, 34 NY2d 222.

In modifying the disciplinary penalty, the Appellate Division commented the Catena had 10 years of satisfactory service with the Village and his misconduct was an isolated event. The Village apparently agreed that dismissal was too harsh a penalty, as it did not appeal that portion of the Supreme Court's decision directing it to reinstate Catena to his former position.

Accordingly, said the court, Supreme Court properly granted the petition reinstating Catena. But the Supreme Court was incorrect when it awarded Catena 60 days back pay and benefits. Apparently the Supreme Court based this award on its belief that Catena was suspended for 60 days without pay or benefits.

The record indicated that Catena was actually suspended without pay for a period of only 30 days. The Appellate Division ruled that under the circumstances, his suspension for 30 days without pay or benefits is an appropriate penalty.

Terminated noncompetitive class employee having less than five years of service entitled to back pay and benefits under the terms of a collective bargaining agreement

Terminated noncompetitive class employee having less than five years of service entitled to back pay and benefits under the terms of a collective bargaining agreement

2014 NY Slip Op 02061, Appellate Division, Second Department

The Board of Education adopted the recommendation of a Civil Service Law §75 hearing officer finding the employee [Petitioner] guilty of misconduct and terminating her employment as a teacher's aid without back pay and employment benefits.

Petitioner initiated an Article 78 action challenging the Board’s decision in which she claimed, among other things, that she was entitled to certain back pay and employment benefits.

The Appellate Division held that Supreme Court had properly granted that branch of the Petitioner’s claim that sought an award of back pay and employment benefits.

The court explained that while Petitioner had less than the five years of continuous service which would ordinarily be required for her to be entitled to the protections of Civil Service Law §75,* the collective bargaining agreement between the School District and Petitioner's union extended the protections afforded by Civil Service Law §75 to noncompetitive class employees who had three years of service.

The court held that “as the Supreme Court determined,” once the arbitrator found that Petitioner satisfied the tenure requirements under the collective bargaining agreement, she was entitled to the protections of Civil Service Law §75, including back pay and benefits for any period of suspension in excess of 30 days, up to the date of the disciplinary determination by the appointing authority terminating her employment.

* See Civil Service Law §75[1][c]), which provides, in pertinent part, that an employee “holding a position in the non-competitive class … who since his [or her] last entry into service has completed at least five years of continuous service in the non-competitive class ….” is covered by the provisions of §75.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02061.htm

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Claims for pay resulting from a suspension without pay in excess of 30 days in connection with disciplinary action taken pursuant to Civil Service Law §75 can be resolved independently of the disciplinary proceeding

Claims for pay resulting from a suspension without pay in excess of 30 days in connection with disciplinary action taken pursuant to Civil Service Law §75 can be resolved independently of the disciplinary proceeding
Rea v City of Kingston, 2014 NY Slip Op 09079, Appellate Division, Third Department

Supreme Court, Ulster County, directed the City of Kingston to reinstate Christopher Rea to his position as Assistant Fire Chief for respondent City of Kingston with an award of retroactive back pay. The City appealed.

As indicated in a prior decision in this matter (Matter of Rea v City of Kingston, 110 AD3d 1227 [2013]), Rea was promoted from Assistant Fire Chief to Fire Chief of the City of Kingston Fire Department in January 2012. His appointment was rescinded and he was suspended without pay pending disciplinary charges. Disciplinary charges were eventually served on Rea alleging multiple specifications of misconduct, most of which pertained to time and leave issues, in August 2012.

The Appellate Division held that, consistent with the provisions of Civil Service Law §75(3),* Rea was "presumptively entitled to receive his regular compensation as Assistant Fire Chief" pending resolution of the disciplinary charges lodged against him” but that "the issue of compensation [could not] be definitively resolved on [the existing] record as [the City] contend[ed] that some [of the] delays [incurred] were either attributable solely to [Rea] or reflect[ed] periods waived by{REA]" and the matter was remitted the matter to Supreme Court "for further development of the record as to the issue of retroactive pay."

Supreme Court directed that the City conduct the disciplinary hearing within 30 days of the court's order to that effect and, notwithstanding certain unresolved factual issues, ordered the City to reinstate Rea to his position as Assistant Fire Chief with full pay and benefits, and without any offset, retroactive to March 10, 2012. Supreme Court also directed that, to the extent that City wished to pursue its claim for an offset, it could do so in the context of a separate action for recoupment.

In response the City’s appeal, the Appellate Division reversed so much the Supreme Court’s order that awarded Rea immediate back pay and benefits retroactive to March 10, 2012 and directed that City pursue any claim for an offset in a separate action, explaining that because the issue of retroactive pay could be resolved independently of Rea's disciplinary proceeding, "it should not serve as a basis for any further delay in holding the [subject] disciplinary hearing".

The decision also noted that Counsel for the City, in the course of oral argument, stated that the underlying disciplinary hearing was completed and that “the appointing authority, in turn, found [Rea] guilty of numerous specifications of misconduct and recommended that he be terminated from his employment.” Absent an appeal from this adverse disciplinary determination, presumably the only unresolved issue is the amount of back pay and benefits due Rea.

* Civil Service Law §75(3) provides for suspension pending determination of disciplinary charges and, in pertinent part, provides that “Pending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days.”

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2014/2014_09079.htm

Judicial review of a determination and awards by the New York State Commissioner of Human Rights

The New York State Division of Human Rights [Division], after a hearing, found that the Town [Employer] had unlawfully discriminated against the Complainant on the basis of her disability. 

Employer appealed the Divisions determinations and awards pursuant to Executive Law §298 and Article 78 of the CPLR. 

The Division cross-petitioned to enforce its determinations and the amounts it had awarded Complainant for back pay, compensatory damages for mental anguish and the civil penalty it had assessed on Employer.

The Appellate Division, "on the law and as a matter of discretion," reduced the amounts awarded Complainant by the Division for [1] back pay, [2] compensatory damages for mental anguish, [3] the civil penalty the Division had assessed on Employer and [4] otherwise confirmed the Division's determinations.

The Appellate Division's decision is set out below:

 

Matter of Town of Hempstead v New York State Div. of Human Rights

2023 NY Slip Op 02129

Decided on April 26, 2023

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 26, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
WILLIAM G. FORD
LILLIAN WAN, JJ.

2019-14251
(Index No. 608005/19)

[*1]In the Matter of Town of Hempstead, petitioner,

v

New York State Division of Human Rights, et al., respondents.

Berkman, Henoch, Peterson & Peddy, P.C., Garden City, NY (Donna A. Napolitano and Nicholas Tuffarelli of counsel), for petitioner.

Caroline J. Downey, General Counsel, Bronx, NY (Toni Ann Hollifield of counsel), for respondent New York State Division of Human Rights.

Lisa Whitaker, Roosevelt, NY, respondent pro se.

 

DECISION & JUDGMENT

Proceeding pursuant to Executive Law §298 and CPLR article 78 to review a determination of the Commissioner of the New York State Division of Human Rights dated April 16, 2019, and cross-petition by the New York State Division of Human Rights pursuant to Executive Law §298 to enforce the determination. The determination, after a hearing, found that the petitioner unlawfully discriminated against the complainant on the basis of her disability, awarded her back pay in the principal sum of $69,865.64, for the period from November 8, 2012, until the date of her retirement on June 8, 2014, plus interest at the rate of 9% per year from August 21, 2013, not offset by Workers' Compensation benefits received, and compensatory damages for mental anguish in the principal sum of $40,000, and assessed a civil penalty in the principal sum of $35,000.

ADJUDGED that the petition is granted, on the law and as a matter of discretion, without costs or disbursements, to the extent that the award of back pay is reduced from the principal sum of $69,865.64 to the principal sum of $17,779.91, plus interest at the rate of 9% per year from November 8, 2013, the award of compensatory damages for mental anguish is reduced from the principal sum of $40,000 to the principal sum of $10,000, plus interest at the rate of 9% per year from April 16, 2019, and the civil penalty assessed is reduced from the principal sum of $35,000 to the principal sum of $10,000, plus interest at the rate of 9% per year from April 16, 2019, the petition is otherwise denied, the determination is otherwise confirmed, and the proceeding is otherwise dismissed on the merits, and the cross-petition is granted to the extent that the determination, as amended, is enforced, and is otherwise denied.

In March 2000, the respondent Lisa Whitaker (hereinafter the complainant) was hired by the Town of Hempstead Department of Occupational Resources (hereinafter DOOR) as a life skills counselor. The complainant's duties included meeting with program participants who had experienced severe difficulties finding employment, counseling them on how to become gainfully employed, and entering information on a computer.

In or about September 2010, the complainant suffered a work-related injury. She submitted to DOOR a note from a doctor which stated that she was "totally disabled" and unable to work. She began receiving Workers' Compensation benefits in or about September 2011. In March 2012, the complainant filed a complaint with the respondent New York State Division of Human Rights (hereinafter the DHR), claiming discrimination in the conditions of her employment.

In October 2012, the complainant asked to return to work, noting that her doctor had advised her that she could work on a reduced schedule two to three days per week, but that she would be unable to type or to lift and carry objects. DOOR advised her in writing that she could not return to work with a reduced schedule and restricted duties. She could either return to work full time, five days per week, with full duties, or she could request a return from Workers' Compensation to full time work, and then upon her return request a partial leave of absence with a reduced schedule of three days per week. She was further advised that she would have to close her Workers' Compensation case before she could be considered for a reduced schedule. The complainant did not reply.

In March 2013, the complainant was diagnosed with major depressive disorder, which was related at least in part to her medical condition. In May 2013, the attorney handling the complainant's proceedings before the DHR requested an adjournment of an upcoming hearing until September 2013 because the complainant was undergoing several surgeries, and was classified as "totally disabled" under the Workers' Compensation law. In July 2013, the attorney submitted an additional adjournment request, and annexed a physician's report dated July 3, 2013, which stated that, because of her back pain, the complainant could not tolerate sitting through even a short hearing.

On July 15, 2013, the Town advised the complainant that, because she had been on a leave of absence for an occupational injury for in excess of one year, her employment was terminated pursuant to the Civil Service Law, but that she could be reinstated if she were found fit to return to work after a medical examination. In response, the complainant submitted to DOOR a report from another physician which stated that the complainant was able to return to work on full duties as of July 30, 2013. The complainant also requested a pre-termination hearing in accordance with the collective bargaining agreement between the Town and her union. In response to her request for a pre-termination hearing, the Town advised the complainant that in order to return to work she would have to submit a report clearing her to return from the doctor who found her unfit to attend the hearing before the DHR. The complainant then submitted a report from the doctor who found her unfit to attend the hearing before the DHR, which stated that the complainant could return to work "full duty as tolerated." The Town responded that the report was conditional, and that it would not accept the report as proof that the complainant could return to work on full duties.

The Town and the complainant attempted to negotiate a settlement of the proceedings before the DHR that would allow the complainant to return to work, but in December 2013, the complainant's position as life skills counselor was eliminated when DOOR's budget was adjusted. Further negotiations were halted in March 2014, when the complainant reopened her Workers' Compensation claim following an additional surgery on her shoulder. On June 8, 2014, the complainant retired from DOOR. On June 27, 2014, the complainant filed another complaint with the DHR, claiming that she had been forced to retire because she had not been afforded an accommodation for her disability.

After a hearing, an Administrative Law Judge (hereinafter ALJ) concluded that the Town discriminated against the complainant with respect to her disability when it refused to accept her medical documentation that she was fit to return to work full time, failed to inform her of the specific language that it would accept in her medical documentation, and eliminated her position when DOOR's budget was adjusted. The ALJ further determined that the Town's actions had been taken in retaliation for the complainant's litigation before the DHR. The ALJ recommended that the complainant be awarded back pay in the principal sum of $27,477.64, for the 10-month period from August 2013 through June 2014. The ALJ also recommended an award in the principal sum of $40,000 for mental anguish, and the imposition of a civil penalty in the principal sum of $35,000.

In a determination dated April 16, 2019, the Commissioner of the DHR concluded that the petitioner unlawfully discriminated against the complainant when it "refused to permit her to return to work in October of 2012," and failed to provide her with a reasonable accommodation for her disability. The Commissioner acknowledged that the Town informed the complainant that a reduced schedule was possible, but determined that the Town failed to establish that it was unduly burdensome to provide the complainant with typing assistance such as dictation equipment and/or another employee to assist her. The Commissioner increased the award of back pay to the principal sum of $69,865.64, for the period from November 8, 2012, until the date of the complainant's retirement on June 8, 2014, plus interest at the rate of 9% per year from August 21, 2013, not offset by Workers' Compensation benefits received. The complainant's retaliation claim was dismissed. In accordance with the recommendation of the ALJ, the Commissioner awarded the complainant the principal sum of $40,000 for mental anguish, and imposed a civil penalty in the principal sum of $35,000. Thereafter, the Town commenced this proceeding to review the determination, and the DHR cross-petitioned to enforce the determination. By order dated October 10, 2019, the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).

"The scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination . . . is supported by substantial evidence in the record" (Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d 898, 899; see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 331). "Substantial evidence 'means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact'" (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 331, quoting 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180).

The determination that the complainant was entitled to back pay from November 2012, was not supported by substantial evidence in the record. Although a reasonable accommodation may include "job restructuring" (9 NYCRR 466.11[a][2]), "[t]he disabled individual must be able, with or without accommodation, to attain reasonable performance. Reasonable performance is not perfect performance or performance unaffected by the disability, but reasonable job performance, reasonably meeting the employer's needs to achieve its business goals" (9 NYCRR 466.11[d][1][ii]). Here, the complainant testified at the hearing that her position as a life skills counselor required knowledge of computer programs and writing skills, and that her duties included entering information on a computer. Thus, typing on a computer was an essential aspect of her position.

"[I]f an employee has a physical impairment that prevents the employee from performing the core duties of his or her job even with a reasonable accommodation, the employee does not have a disability covered by the statute, and consequently, the employer is free to take adverse employment action against the employee based on that impairment" (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 834; see Executive Law § 292[21]). The employee bears the burden of proof on whether he or she is able to perform the core duties of his or her job even with a reasonable accommodation, and in this case the complainant failed to satisfy that burden (see Jacobsen v New York City Health and Hosps. Corp., 22 NY3d at 834). Further, requiring DOOR to reassign the complainant's work to coworkers would have been an unreasonable accommodation (see Pembroke v New York State Off. of Ct. Admin., 306 AD2d 185).

The complainant's employment was purportedly terminated pursuant to Civil Service Law § 71, which provides, in pertinent part, that "[w]here an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the workmen's compensation law, he or she shall be entitled to a leave of absence for at least one year." However, that provision gives the employee the opportunity to seek reinstatement based upon medical certification "that such person is physically and mentally fit to perform the duties of his or her former position."

Here, in August 2013, the complainant sought reinstatement and submitted medical documentation of her fitness for duty. Yet she was not permitted to return to work and her position [*2]was eliminated when DOOR's budget was adjusted.

To make a prima facie showing of a violation of Executive Law § 296(1)(a), which prohibits discrimination in employment based upon a disability, the complainant "must show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination" (Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d at 900 [internal quotation marks omitted]; see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 330). "Once a prima facie case is made, the burden of production shifts to the employer to rebut the presumption with evidence that the complainant was discharged for a legitimate, nondiscriminatory reason" (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 330). Here, the complainant established she was a member of a protected class, i.e., a person with a disability, her medical evidence indicated that she was capable of assuming full duty, but she suffered an adverse employment action, i.e., the denial of reinstatement, under circumstances giving rise to the inference of discrimination based upon her disability. The Town failed to rebut that presumption. Accordingly, the complainant was entitled to an award of back pay for the 10-month period from August 2013, when the complainant sought reinstatement, through June 2014, when she retired from DOOR. However, the Workers' Compensation benefits she received for that period should have been offset against an award of back pay to prevent a double recovery (see Matter of Grand Union Co. v Mercado, 263 AD2d 923; Matter of Allender v Mercado, 233 AD2d 153). The petitioner is self-insured with respect to Workers' Compensation benefits, therefore there is no risk that an insurance carrier will impose a lien on the award of back pay, resulting in the complainant suffering a double debit (cf. Matter of Rensselaer County Sheriff's Dept. v New York State Div. of Human Rights, 131 AD3d 777).

The ALJ recommended the imposition of a civil penalty in the principal sum of $35,000 based upon her finding of retaliation as well as discrimination in responding to the complainant's efforts for reinstatement in August 2013. Since the Commissioner dismissed the retaliation claim, the civil penalty imposed is disproportionate to the offense (see Matter of Kelly v Safir, 96 NY2d 32, 36; Matter of County of Erie v New York State Div. of Human Rights, 121 AD3d 1564, 1566), and must be reduced to the principal sum of $10,000 (see Matter of Mukattash v Human Rights Commn. of Westchester County, 97 AD3d 584, 586).

Similarly a court will intervene when an award for mental anguish is not reasonably related to the wrongdoing, is not supported by substantial evidence, or does not compare with awards for similar injuries (see Matter of Mutual Apts., Inc. v New York City Commn. on Human Rights, 203 AD3d 1154, 1158). Since the complainant's diagnosis of major depressive disorder occurred in March 2013, before the discriminatory conduct in August 2013, and was initially related at least in part to the complainant's medical condition, the award of the principal sum of $40,000 was not reasonably related to the discriminatory conduct (see Matter of Freudenthal v County of Nassau, 99 NY2d 285, 291; Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 217, 219), and must be reduced to the principal sum of $10,000 (see Matter of MTA Trading, Inc. v Kirkland, 84 AD3d 811; Matter of Woehrling v New York State Div. of Human Rights, 56 AD3d 1304, 1306).

Accordingly, the petition must be granted to the extent that the award of back pay is reduced from the principal sum of $69,865.64 to the principal sum of $17,779.91, plus interest at the rate of 9% per year from November 8, 2013, the award of compensatory damages for mental anguish is reduced from the principal sum of $40,000 to the principal sum of $10,000, plus interest at the rate of 9% per year from April 16, 2019, and the civil penalty imposed is reduced from the principal sum of $35,000 to the principal sum of $10,000, plus interest at the rate of 9% per year from April 16, 2019, the petition is otherwise denied, the determination is otherwise confirmed, and the proceeding is otherwise dismissed on the merits, and the cross-petition is granted to the extent that the determination, as amended, is enforced, and is otherwise denied.

DILLON, J.P., CHAMBERS, FORD and WAN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

 

 

Employee terminated for cause entitled to back pay for the period she was suspended without pay in excess of 30 days

Employee terminated for cause entitled to back pay for the period she was suspended without pay in excess of 30 days

The Westchester County Health Care Corporation adopted the recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75, finding the employee guilty of certain charges of misconduct and insubordination. It then terminated the individual from its employ.

Te Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary termination of an employee with respect to the merits of the appeal. The court held that contrary to the individual’s contention, Westchester’s determination that the individual was guilty of certain charges of misconduct and insubordination was supported by substantial evidence in the record.

The court also rejected the individual’s claim that she was denied a fair hearing due to the alleged bias of the hearing officer as being without merit, finding that there was no evidence in the record to support her contention that the hearing officer was biased.

As to the penalty imposed, dismissal, the court ruled that termination was “not so disproportionate to the offenses committed by the petitioner as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.”

Although the Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary action, the court remanded the matter to the lower court for its determination regarding any back pay due the dismissed individual.

Here, said the court, the individual “correctly contends that she is entitled to back pay for the period she was suspended without pay in excess of 30 days, excluding delay, if any, occasioned by her, and less unemployment insurance benefits received for that period, if any,” citing Civil Service Law §75[3].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03839.htm

Deeming an individual’s absence without permission a resignation from, or abandonment of, the position

Deeming an individual’s absence without permission a resignation from, or abandonment of, the position
New York State Off. of Mental Health v New York State Div. of Human Rights, 53 AD3d 887

Former Section 5.4(d) of the State Civil Service Commission's Rules for the Classified Service [4 NYCRR 5.4(d)] provided that an employee who was absent without permission and without explanation for ten or more days would be deemed to have resigned from his or her position effective the first day of such unauthorized absence. 4 NYCRR 5.4(d) was held to violate due process. [See, for example, Bernstein v Industrial Commissioner, 57 AD2 767] and was subsequently repealed.

However, this type of provision may survive in collective bargaining agreements, as demonstrated in this action.

An individual began working as a safety officer for the Office of Mental Health and subsequently entered an inpatient rehabilitation program for alcohol abuse. However the individual did not report back to work, but made several telephone calls to his supervisor, informing him that he would not be returning to work for various reasons, including an injury to his leg.

The personnel office then sent a letter to the employee stating that, pursuant to the collective bargaining agreement (CBA) between the State and Purse's union, the individual was deemed to be absent from duty without authorization and he would be terminated from the position by a specified date unless he provided a satisfactory explanation for his absence since his release from the program.

Ultimately the individual was removed from the payroll and he thereafter filed a verified complaint with the State Division of Human Rights (SDHR) charging OMH with an unlawful discriminatory practice based on his status as a recovering alcoholic. SDHR determined that it had jurisdiction and after a number of hearings before an Administrative Law Judge determined, that OMH had engaged in a discriminatory practice and awarded the complainant $5,000 for emotional distress and in addition awarded Purse $385,750 for back pay.

The Appellate Division commenced its analysis of the case by noting that it “accords considerable deference to the determinations of SDHR due to its expertise in evaluating discrimination claims, and we will uphold such if supported by substantial evidence.”

Further, said the court, "[a] determination may not be set aside 'merely because the opposite decision would have been reasonable and also sustainable” and upheld SDHR's determination that OMH engaged in an unlawful discriminatory practice.

Referring to the CBA, the Appellate Division noted that it, in relevant part, that "[a]ny employee absent from work without authorization for ten consecutive workdays shall be deemed to have resigned from his [or her] position if he [or she] has not provided a satisfactory explanation for such absence on or before the eleventh workday following the commencement of such unauthorized absence." 

Here, the court noted, the record demonstrates that, after failing to report to work, OMH was contacted by telephone and put on notice of the employee’s medically excused absence, followed with telephone calls, during the last of which OMH was advised that the individual would be absent for an indefinite period of time.

Further, said the court, OMH placed the individual in “a holding status” until he furnished the proper documentation, which he submitted in the form of medical reports substantiating his absence.

This, said the court, provides substantial evidence to support SDHR's determination that OMH's proffered reason for terminating the employee was a pretext; that OMH engaged in an unlawful discriminatory practice; and that employee was entitled to an award of $5,000 for emotional distress.

The Appellate Division, however, rejected SDHR's determination that the individual was entitled to an award for back pay.

The purpose of back pay, said the court, is to make a person whole and redress the economic injury that has resulted from unlawful employment discrimination. Thus, where losses in salary are attributable to disability and not the result of discrimination, as is here the case based on the individual’s own explanation of his absence, an award of back pay should not be made.

Further, said the court, the record demonstrates that the individual was removed from OMH’s payroll and, as the result of a retroactive award, began receiving disability benefits effective on that same day. Thus, said the court, “we find that SDHR erred in making the determination that the individual was entitled to a back pay award.”

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/deeming-individuals-absence-without.html

Excessed educator claims back pay, benefits and pension credit based on the appointing authority's alleged failure to reinstate her from the preferred eligible list

The genesis of this appeal to the Commissioner of Education was a notice sent to petitioner [Appellant] that her elementary tenure area position would be abolished effective July 1, 2003 and that her name would be placed on a preferred eligible list. Appellant challenged a number of the actions taken by the appointing authority [Employer] in the course of processing her for reinstatement to a position in her tenure area. Essentially Appellant contended that the actions taken by Employer were inconsistent with her rights as an individual eligible to be reinstated to a position from a preferred eligible list.*

The issue  before the Commissioner concerned Appellant's assertion that Employer:

[1] unlawfully filled teaching vacancies by temporary appointment before recalling Appellant who was the most senior qualified teacher on the preferred eligible list; and

[2] her demand for back pay, benefits and pension credit to which she claimed she was entitled as a result of such alleged "unlawful appointments" and other actions by the Employer.

Employer, in rebuttal, contended that:

[a] It had acted in good faith;

[b] Appellant failed to meet her burden of demonstrating a clear right to the relief she sought in that she did not, or could not, demonstrate that she performed the duties one of the positions sought while serving in her former position within the meaning of the relevant law and regulations;

[c] Appellant's petition failed to state a cause of action;

[d] Appellant's petition was untimely and moot;

[e] Appellant did not attempt, or failed, to mitigate her damages; and

[f] Appellant failed to serve certain necessary parties with a notice of her appeal and copies of the complaint.

After addressing a number of the procedural concerns raised by the parties involving timeliness, service and verification of certain filings, the Commissioner ruled that they lacked merit, as did Employer's contention that Applicant had not named and served certain individuals as "necessary parties".

With respect to Employer's contention concerning necessary parties, the Commissioner explained that "[a] party whose rights would be adversely affected by a determination of an appeal in favor of a Appellant is a necessary party and must be joined as such." Here, however, the Commissioner noted that the record indicated that both of the individuals Employer claimed were necessary parties had resigned from their respective positions with the Employer in 2008 and, therefore, would not be adversely affected by a decision in this appeal.  Further, opined the Commissioner, as Appellant is only seeking back pay, benefits and pension credit and not reinstatement to her former position, Appellant had joined all necessary parties.

The Commissioner also rejected Employer's argument that the appeal must be dismissed as moot because Appellant had retired in 2010.  Noting that an employee’s preferred eligible list recall rights do not survive his or her formal retirement unless it can be demonstrated that the individual's decision to retire was involuntary or made under duress the Commissioner found that the record showed Appellant did not claim that her retirement was involuntary or made under duress. Further, said the Commissioner, Appellant is not claiming a recall right to a vacancy that occurred or was created after her retirement, but rather she is claiming a right to back pay, benefits and pension credit based on Employer's alleged failure to reinstate her from the preferred eligible list her to a position in the elementary tenure area prior to her retirement that was the subject of pending litigation at the time of her retirement. 

Accordingly, the Commissioner, in consideration of an earlier court decision involving the same parties, that determined that "the Commissioner has primary jurisdiction over the issue of similarity of positions," declined to dismiss the appeal as moot.

Turning to the merits of the appeal, the Commissioner indicated that Appellant’s recall rights, if any, are to appointment to vacancies in a position similar to the position she formerly held.  On this record the Commissioner found that Employer had offered Appellant the positions that were in compliance with the recall requirements set out in Education Law §3013 and concluded that Appellant’s claim that she was justified in refusing to accept or ignoring offers of reinstatement to a teacher of pre-school position was meritless. 

The language that Appellant found "unacceptably ambiguous" in Employer' letter advising her that she was being reinstated from the preferred eligible list stated "[p]lease be advised, since you are on the preferred eligibility list, you may have rights to this position.  However, we do have to recall in order of seniority."

Clearly, said the Commissioner, the letter extended an offer of appointment to the position was conditioned only on Appellant having the greatest length of service of the persons on the appropriate preferred eligible list, a statutory requirements set out in Education Law §3013, and the record indicated that Appellant did, in fact, have the greatest seniority of the teachers on the preferred eligible list at issue.**

Noting that Employer's attorney had clearly and unambiguously confirmed in writing that Appellant would be appointed if she accepted the position, the Commissioner ruled that under the circumstances, Appellant, by failing to accept the position, "rejected Employer’s unconditional offer of appointment and could not claim a right to reinstatement to the ... position." As a result, Appellant could not assert a right to back pay, benefits and pension benefits based on Employer's failure to appoint her to that position.

Subsequently Appellate failed to respond to a second, similar letter from Employer's director of human resources requesting that she either accept or decline yet another position.  As was the case with the earlier event, the Commissioner found that Appellant, by failing to accept the position, rejected Employer's unconditional offer of appointment and could not claim a right to reinstatement to that position nor a right to back pay, benefits and pension benefits based on Employer's failure to appoint her to that position.

However, Appellant also claimed a right to back pay, benefits and pension credit based on Employer's failure to reinstate her to a third position in the "family literacy educator" tenure area for the 2006-2007 school year. As there was nothing in the record indicating that Employer offered to appoint Appellant to any of those positions in that tenure area from the preferred eligible list, Appellant’s right to relief depends on whether the position of family literacy educator was similar to that of Appellant’s former position.

In consideration of evidence in the record addressing the duties of these positions, the Commissioner concluded that Appellant failed to meet her burden of proving that 50 percent or more of the duties of the two family literacy educator positions available in the 2006-2007 school year were similar to the duties of her former position in the tenure area of "teacher of gifted and talented education."

The bottom line: the  Commissioner dismissed the instant appeal in its entirety.

* Employer's human resources director's sent Appellant a letter notifying her that a vacant position existed within the Employer and asked her to accept or decline the position.  Appellant responded, asserting that the letter was too ambiguous and was not a final determination that she would be appointed to the teacher position and asked for "a valid offer of re-employment to enable her to make an informed decision." Employer's attorney wrote to Appellant's attorney that if Applicant either signed the settlement agreement or indicated acceptance of the position in response to the recall letter, she would be appointed to the position. Appellant did not accept or decline the pre-school teacher position and the position was filled by another individual. Employer later sent Appellant an unconditional employment offer and requested that that she indicate her willingness to accept or reject this position by a specified date.  Appellant did not respond to the notification and, again, the position was filled by another individual. Ultimately Employer removed Appellant from the preferred eligibility list after seven years had passed from the date on which Appellant’s position had been abolished [see §3013.3]. 

** It should be noted that a preferred list for a particular title or position is a "moving target" as names are added to it to reflect the reinstatement rights of individuals excessed as the result of subsequent layoffs. Preferred eligible lists are revised to reflect "seniority rank order" of individuals added to, or deleted from, the list over time.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17601