Reporting threats of violence by a disgruntled employee to the police

Reporting threats of violence by a disgruntled employee to the police
Aviles v Cornell Forge Co., CA7, 241 F.3d 589

Violence at the work site is a growing concern to both employers and employees.

The Aviles case involves an employer's fear of such violence after it learned that a disgruntled employee, Alfredo Aviles, had threatened a supervisor and was seen standing outside the building. The police were called and arrested Aviles. Aviles then sued the employer, Cornell Forge Co., for alleged unlawful discrimination based on his national origin and claimed that the Cornell had called the police in retaliation for his filing a hostile work environment claim.

These were the essential elements alleged in the Aviles case.

Aviles contended that he was the victim of unlawful discrimination because "calling the police to report that a disgruntled employee is waiting outside the workplace and may be armed is an adverse action as a matter of law."

The U.S. Circuit Court of Appeals disagreed with Aviles' theory, ruling that a truthful, nondiscriminatory report to the police should not subject an employer to Title VII liability.

According to the decision, such theory is "ill-advised." If, said the court, an employer had to face potential Title VII liability for truthfully reporting to the police that a disgruntled employee had threatened a supervisor and could be armed, it probably would discourage employers from taking the most prudent action to protect themselves and others in the workplace.

In contrast, the court said that a false report to the police could be construed as a retaliatory action meant to dissuade Aviles from pursuing his EEOC charge against the company.

The court affirmed the district court's granting a directed verdict in favor of Cornell Forge.

Proof of the alleged "crime" must be in the record of the disciplinary hearing to satisfy the "exception" to the §75 "18 month statute of limitation"

Proof of the alleged "crime" must be in the record of the disciplinary hearing to satisfy the "exception" to the §75 "18 month statute of limitation"
Matter of Guynup v County of Clinton, 2010 NY Slip Op 04914, decided on June 10, 2010, Appellate Division, Third Department

Terry Guynup, a lieutenant with 14 years of service with the Clinton County Sheriff's Department, was served with disciplinary charges alleging misconduct, incompetence and insubordination pursuant to Civil Service Law §75.

One of the specifications filed against Guynup alleged that he had directed threats towards the Sheriff, David Favro.

The §75 hearing officer found Guynup guilty of all but two of the specifications set out in the charges.

In addition to dismissing a charge that alleged that Guynup had made derogatory public comments about the Sheriff's Department because no evidence was presented at the hearing to support this charge, the Hearing Officer dismissed the charge concerning the threat that Guynup was alleged to have directed at Sheriff Favro because, “if made, it occurred more than 18 months before the disciplinary charges were filed and, as a result, was untimely.*

The Hearing Officer recommended that Guynup be required to participate in an employee assistance program and be suspended without pay for 30 days.

When Sheriff Favro received the Hearing Officer’s findings and recommendations, he disqualified himself from any further participation in the proceeding and designated Michael E. Zurlo, the Clinton County Administrator, to review the report, determine if its findings were supported by substantial evidence and decide what penalty, if any, should be imposed upon Guynup.

Zurlo adopted the Hearing Officer's findings that Guynup was guilty of misconduct, insubordination and incompetence, but, among other things, determined that the specification dismissed by the Hearing Officer as untimely was, in fact, timely as it constituted criminal and, therefor, the statutory time period within which the disciplinary action concerning this allegation had to be commenced did not apply.

Zurlo rejected the Hearing Officer's recommendation regarding the penalty to be imposed and, instead, directed that Guynup should be terminated from his position with the Sheriff's Department.

Guynup filed an Article 78 petition challenging [1] “the legality of Zurlo's appointment by Favro,” and [2] Zurlo’s determination that the charge alleging the threat to Favro was timely.

As to Guynup’s objection to the Sheriff designating Zurlo to review the Hearing Officer’s findings and recommendations and to make a final determination, the Appellate Division, citing Gomex v Stout, 13 NY3d 182, said that “where a civil service proceeding has been commenced and a conflict exists that implicates the appointing authority's ability to be fair and impartial, a third party with ‘supervisory authority over that particular employee’ may be designated to review a Hearing Officer's report and, upon such a review, make determinations concerning the employee's status.”

Noting that “the conflict for Favro was self-evident and required that he disqualify himself from conducting the necessary review of the findings and recommendations made by the Hearing Officer,” the Appellate Division also found that the only others having “command authority” over Guynup were disqualified because of they were both witnesses who testified at the disciplinary hearing.

The court said that “Favro not only had the authority to deputize Zurlo, the County Administrator, and make him a member of the Sheriff's Department, but also had the right to delegate to him the authority to conduct this review.”

Turning to the Hearing Officer’s ruling that the charge alleging that Guynup threatened Favro was untimely and should have been dismissed, the Appellate Division said that it agreed with the Hearing Officer’s determination that the §75(4) 18-month statute of limitations for bringing such charges controlled.

First, said the court, Civil Service Law §75(4) requires that a removal or disciplinary proceeding be commenced within 18 months after the acts that form the basis of the charges have occurred, unless the conduct in question involves the commission of a crime.

The County's theory: Guynup actions constituted committing the crimes of menacing in the third degree and reckless endangerment in the second degree, thereby rendering the 18-month time limit within which such a charge could be brought inapplicable to this proceeding. The Appellate Division disagreed and sustained the Hearing Officer's ruling.

To have committed the crime of reckless endangerment, said the court, evidence must be presented that Guynup "recklessly engage[d] in conduct which create[d] a substantial risk of serious physical injury to another person" within the meaning of Penal Law §120.20. As Guynup denied the events underlying the allegation, the Appellate Division ruled that “Absent some evidence to the contrary, and none was presented at the hearing, the crime of reckless endangerment on these facts could not have been committed.”

As a result, said the court, "even if the testimony regarding the threats and ensuing struggle are fully accepted, the crimes of reckless endangerment and menacing were not committed by Guynup and the statutory exception to the 18-month rule does not apply” and the charge alleging that he had threatened Favro must be dismissed as untimely.

Finding that Zurlo “never specified the penalty to be imposed for each charge for which he found [Guynup] guilty,” and that the principal charge filed against him — the threat to Sheriff Favro — has been dismissed, the Appellate Division remitted the matter “for a redetermination of the penalty to be imposed on those charges of which [Guynup] now stands guilty.”

* §75.4. provides that “Notwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges or, in the case of a state employee who is designated managerial or confidential under article fourteen of this chapter, more than one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, provided, however, that such limitations shall not apply where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.”

N.B. §75.4 sets different statutes of limitations for state employees designated managerial or confidential pursuant to Article 14 of the Civil Service Law than it does for other individuals. Although a number of collective bargaining agreements provide for a shorter “statutes of limitations” for filing disciplinary charges against an individual in a collective bargaining unit, it is unlikely that setting a greater statute of limitations for employees in a collective bargaining unit would survive judicial review for the reason set out by the Appellate Division in City of Plattsburgh v Local 788, 108 AD2d 1045 -- a collective bargaining agreement may not truncate or diminish a statutory right enjoyed by an employee.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04914.htm

Using personnel records in determining an appropriate disciplinary penalty

Using personnel records in determining an appropriate disciplinary penalty
Massaria v Betschen, 290 A.D.2d 602

In the Massaria case the Appellate Division was asked to determine if was appropriate for the Section 75 hearing officer to consider a disciplinary settlement agreement entered into by an employee and his or her employer to resolve an earlier disciplinary action involving the employee when determining the penalty to be imposed on the employee after he or she was found guilty of misconduct and incompetence in a second, subsequent, disciplinary action.

New Paltz Superintendent of Schools Frederick Betschen filed Section 75 disciplinary charges Kenneth Massaria alleging that he was guilty of misconduct and incompetence based on Massaria's failing to drop a third grade student off at the proper bus stop on two occasions and an incident, captured on videotape, in which Massaria drove his bus in the middle of the road as he approached waiting students at a bus stop.

The hearing officer found Massaria guilty of all of these charges and recommended that he be dismissed from his employment. The School Board adopted the hearing officer's findings and recommendation and terminated Massaria from his position. Massaria appealed, challenging the Board's action.

The Appellate Division dismissed Massaria's appeal, ruling that the testimony and evidence presented at the hearing supplied the substantial evidence required to affirm the school district's action.

One the major issues considered by the court involved the "penalty phase" of the disciplinary hearing. At this point in the proceeding the School District introduced Massaria's prior disciplinary record for the hearing officer's to consider in determining the appropriate penalty to be imposed on Massaria.

This record consisted of a "stipulation of settlement" in lieu of disciplinary charges. In executing this stipulation, Massaria admitted to four acts of misconduct and incompetence involving improperly operating his school bus and "his departing from a mandatory meeting without supervisory permission."

Massaria conceded that the stipulation also provided that it constituted Civil Service Law Section 75 discipline, that it could be used in any future disciplinary proceeding against him, and that if he engaged in similar misconduct in the future, the District would seek to dismiss him from his position.

Addressing the hearing officer's consideration of the stipulation documenting Massaria's prior admission of misconduct and incompetence during the "penalty phase" of the disciplinary action, the Appellate Division said that here the hearing officer's consideration of Massaria's employment record met the test set out in Bigelow v Board of Trustees of the Incorporated Village of Gouverneur, 63 NY2d 470. In particular, the court found that:

1. The hearing officer considered the stipulation only after Massaria was found guilty of the charges of misconduct and incompetence filed against him;

2. Massaria "was given ample notice" that the prior stipulated incidents would be submit­ted to the hearing officer to consider in determining the penalty to be imposed; and

3. Massaria was given an opportunity to be heard regarding those prior incidents.

Significantly, the Appellate Division said that the "prior infractions need not have been included in the statement of charges."Ruling that Massaria's employment history, including the settlement agreement flowing from the prior disciplinary action taken against him, "was properly taken into consideration in the determination of an appropriate sanction for the proven present acts of misconduct and incompetence," the Appellate Division dismissed Massaria's appeal.

Failure to serve the proper party a fatal procedural error

Failure to serve the proper party a fatal procedural error
Appeal of Stephanie Baker from action of the Board of Education of the City School District of the City of Elmira, Decisions of the Commissioner of Education #15,696

Stephanie Baker, a probationary teacher, appealed the termination of her probationary appointment and denial of tenure by the Board of Education of the City School District of the City of Elmira.

The Commissioner dismissed her appeal without addressing its merits, noting that there was a “lack of proper service on the board.”

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district must made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).

Baker’s affidavit of service stated only that the notice of petition and petition were served on “Valerie–Secretary of Dr. Bryant.” The Commissioner said that the “Valerie” mentioned is Valerie Costiglia, Executive Secretary to the superintendent.

As Ms. Costiglia is not the district clerk, a member of the board, or the superintendent of schools, nor has she or her position as Executive Secretary been designated by the board as authorized to accept service of process within the meaning of 8 NYCRR §275.8, the Commissioner ruled that “When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper and the appeal must be dismissed.”

The full text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/failure-to-serve-board-of-education.html

Litigating the Taylor Law in federal court

Litigating the Taylor Law in federal court
Schermerhorn v Metropolitan Trans. Auth. CA2, 156 F.3d 351

The Schermerhorn case demonstrates that complaints that a union has breached its duty of fair representation to the members of the negotiating unit it represents must be filed within the controlling statute of limitations because the court will never reach the merits of the complaint if it is untimely filed.

Another important issue in this case: which was the controlling law -- federal or state -- for the purposes of determining the applicable limitations period.*

Schermerhorn, a member of Local 100 of the Transport Workers Union of America (Union) sued the Union and the Metropolitan Transportation Authority and the New York City Transit Authority (Employers). He complained that the Union breached its duty of fair representation in violation of the Taylor Law.

According to the Schermerhorn, the Union, without the knowledge of its members, had made a somewhat complex “open offer” to the Employers which, if accepted, would require members of the negotiating unit to pay “additional medical costs” upon their receiving an anticipated salary increase that was tied to a proposed change in pension legislation then pending before the New York State legislature.

This would constitute a significant change in the benefit package provided to the employees in the unit. At the time the Union made its “open offer,” the Employers were paying all costs of medical benefits for unit members through contributions to a welfare benefit trust. Further, the “open offer” also included a provision requiring its terms to be incorporated into the next collective bargaining agreement negotiated by the parties.

The pension legislation was adopted and on July 26, 1994, the Employers accepted the “open offer.”

The Union and the Employers subsequently entered into new collective bargaining agreements, which were later ratified by the Union’s membership. This new Taylor Law contract included the provisions contained in the “open offer.” Contending that the members had not been informed of the terms of the “open offer,” which was described as an “undisclosed agreement,” Schermerhorn argued that the contract was a nullity because it “was never properly ratified by the membership.”

A federal district court dismissed Schermerhorn’s petition, holding that the National Labor Relations Act applied to Schermerhorn’s action. The district court then held that Schemerhorn’s petition was “time-barred” under the six-month statute of limitations applicable under Section 301 of the federal Labor-Management Relations Act.

Although Schermerhorn settled his complaint against the Union officials after his petition was dismissed, he elected to appeal the district court’s ruling insofar as it related his allegations of collusion by the Employers.

In this appeal to the U.S. Circuit Court of Appeals, however, the parties stipulated, and the Circuit Court agreed, that the claim against the Employers was governed by the Taylor Law provision relating to claims by public employees against their employer premised on their union’s breach of its duty of fair representation [Civil Service Law Section 209-a] rather than by federal law.

Applying New York State Law, the Circuit Court held that the four-month statute of limitations set out in Section 217(2)(b) of New York’s Civil Practice Law and Rules [CPLR] controlled.

According to the Circuit Court’s ruling, this four-month limitations period begins to run when (i) the plaintiff knew or should have known of the union’s breach of its duty of fair representation; or (ii) the plaintiff suffered harm from that breach, whichever is later.

The Circuit Court said that “there can be no question that plaintiffs became aware of the existence of the agreement at the very latest in early September 1995” when they learned that the Employers would begin to deduct 0.75% of their wages to offset increased medical costs resulting from the modification of the pension plan.”

Accordingly, said the Court, “more than four months prior to the commencement of their suit, [Schemer horn] knew or should have known of the Union’s alleged breach, and had suffered harm from that breach.”

Schemer horn also contended that the four-month limitations period should be tolled because an internal Union grievance was filed by one of the plaintiffs on December 29, 1995. In that grievance the member attempted to have the Union officials responsible for the “undisclosed agreement” disciplined.

The Circuit Court said that it would look to New York’s “tolling rules” to determine whether the statute of limitations was tolled by the filing of a grievance. It concluded that “[t]here is no New York statutory provision tolling the statute of limitations while an employee pursues an internal union grievance for claims against a public employer arising from a union’s breach of its duty of fair representation....”

According to the Circuit Court, New York law does not allow administrative or union grievances to toll the statute of limitations on claims against public entities in article 78 proceedings. It noted the decision in Vasbinder v. Hartnett, 129 A.D.2d 894, 895, 514 N.Y.S.2d 530, commenting that in that ruling the State’s Appellate Division noted that “invocation of a grievance procedure will not serve to toll the statutory time limit prescribed by CPLR [Section] 217” for the purposes of Article 78 proceedings.

The points of the ruling to be remembered:

1. If a party brings an action involving New York’s Taylor Law on the theory that the National Labor Relations Act is, in some way, implicated, the federal court will decide those aspects of the litigation involving the Taylor Law on the basis of New York’s law, not the federal law; and

2. The fact that a grievance concerning the underlying complaint has been filed by one of the parties will not stop the statute of limitations from continuing to run with respect to that party for the purposes of initiating litigation.

* Although the decisions here concluded that Schermerhorn’s suit was “untimely” regardless of whether federal and State law controlled, the critical aspect of the ruling was that the parties, and the U.S. Circuit Court of Appeals, ultimately agreed that New York State Law rather than the National Labor Relations Act, controlled.

Employee disciplined for driving department vehicle “with a passenger, after hours and off-route"

Employee disciplined for driving department vehicle “with a passenger, after hours and off-route"
New York City Department of Environmental Protection v Johnson, OATH Index #1330/10

OATH Administrative Law Judge Kevin Casey found that a “311 complaint” telephoned by a citizen, Mike Cristino, corroborated by the Department’s chief inspector's investigation, was sufficiently reliable to prove that a Department water use inspector drove a department truck, with a passenger, after hours and off-route.

Mr. Cristino had telephoned 311* and reported that while crossing a street in Brooklyn after 5 p.m., he was almost hit by a truck driven by a DEP worker. The complainant provided the license plate number and noted that the passenger in the vehicle had “given him the finger.”

The license plate number provided by Mr. Cristino matched the one on the truck assigned to Nicholas Johnson, an Environmental Protection water use inspector.

The record indicated that Johnson’s route was in the Bronx, and his shift ended at 4:30 p.m.

The Department’s inspector testified Johnson had logged 56 miles that day although his route was 18 miles. Johnson attempted to explain the discrepancy by suggesting he drove extra miles to keep his truck cabin cool, to avoid extra idling and check fire hydrants or that he made an erroneous log entry.

ALJ Casey rejected Johnson’s explanations as unlikely and recommended be suspended without pay for 12 days.

* Individuals in New York City only need dial 311 - the 311 Citizens Service Center - for all non-emergency related Government services calls. For additional information about NYC's 311 service go to: http://www.nyc.com/government/311_citizens_service_center.76037/editorial_review.aspx

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1330.pdf

Tenure by estoppel

Tenure by estoppel
Wamsley v East Ramapo Central School District, 281 A.D.2d 633

If a school board neglects to take timely action to discontinue the services of a probationary teacher or administrator, the individual will attain what is termed "tenure by estoppel." The Court of Appeals addressed the issue of an individual obtaining "tenure by estoppel" in the Sewanhaka case [Gould v Sewanhaka Central High School District, 81 NY2d 446].

However, "tenure by estoppel" is not limited to individuals in the unclassified service such as teachers and school administrators -- employees in the classified service also may attain tenure by estoppel as the Wamsley decision demonstrates.

On October 5, 1998, East Ramapo appointed George Wamsley to the position of school bus driver, a classified service position in the noncompetitive class. Wamsley's appointment was subject to his satisfactorily completing a 26-week probationary period.*

On August 18, 1999 the school district's personnel officer wrote to Wamsley advising him that he was to be dismissed because his service during his probationary period had been deemed unsatisfactory by his supervisors. Wamsley was terminated from his position effective August 25, 1999.

Wamsley sued, contending that his probationary term had expired before he was discharged and thus he held a tenured appointment. He also claimed that he was entitled to a "pretermination hearing" because he was an "exempt volunteer firefighter."

The Appellate Division agreed with Wamsley's argument that he was no longer a probationary employee at the time he was discharged.

In the words of the court, Wamsley's "probationary term began on October 5, 1998, and ended 26 weeks later ... as permissibly extended by his days of absence."**

Accordingly, Wamsley's 26-week period, not having otherwise been extended as permitted by the rules of the Rockland Civil Service Commission, "expired long before his employment was terminated."

However, there were other elements to consider concerning Wamsley's claim of a right to a pretermination hearing.

The due process procedures set out in Section 75 of the Civil Service Law are not available to a noncompetitive class employee who has less than five years of continuous service*** unless the individual is a veteran who served in time of war or is an "exempt volunteer firefighter."

According to the Appellate Division, Wamsley claimed, but never established, that he was entitled to the protections of Section 75**** because he was an exempt volunteer firefighter.

The Appellate Division concluded that although clearly Wamsley was not a probationer at the time of is dismissal, he raised a triable issue of fact with respect to his claim of Section 75 rights based on his status as an exempt volunteer firefighter.

According, a hearing on this aspect of this complaint was required and the matter was returned to State Supreme Court "for resolution of that factual issue."

Two technical elements concerning exempt volunteer firefighter status should be noted:

1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [People v Hayes, 135 AD 19]; and

2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [Badman v Falk, 4 AD2d 149].

* Although decision states that Wamsley "became permanent" after the expiration of his 26-week probationary term, "probationary employees" in fact hold permanent appointments and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

** The Appellate Division said that as Wamsley "was absent, at most, 5 1/2 days during the 26-week period," his maximum period of probationary had ended expired long before his employment was terminated.

*** Section 75(c), in pertinent part, provides that an employee holding a position in the non-competitive class ... who since his last entry into service has completed at least five years of continuous service in the non-competitive class ....

**** Section 75(b), in pertinent part, extends the Section 75 rights available to tenured employees in the competitive class to a permanent employee in the classified service who is an exempt volunteer firefighter as defined in the general municipal law, except when a person described in this paragraph holds the position of private secretary, cashier or deputy of any official or department.

Termination of a probationer

Termination of a probationer
Johnson v City of New York, 281 A.D.2d 322

Elaine Johnson, a probationary employee, challenged her termination from her position as a Caseworker with the New York City Administration for Children's Services [ACS].

According to the decision, Johnson suffered a job-related injury while she was serving as a provisional Caseworker.

ACS permanently appointed Johnson to the position of Caseworker while she was on leave. Her permanent appointment was subject to her satisfactory completion of a one-year probationary period. Still on leave, Johnson was terminated from her position before completing her probationary period.

The Appellate Division upheld Johnson's termination, rejecting her allegation that she was terminated in retaliation for a complaint she had made while a provisional employee concerning her supervisors' communication skills.

The court said that there was "ample evidence of [Johnson's] unacceptable work performance as a provisional that her supervisors began to document before she made her complaint about them."

However, there are some troublesome aspects to this case.

According to the ruling, Johnson never actually performed any services as a Caseworker while a probationer -- she was absent on an authorized leave prior to and following her permanent appointment. ACS, said the court, relied on her "performance as a provisional in making its decision to terminate her permanent appointment.

Typically, a probationary period is extended if the individual is absent during his or her probationary period.

As to actually being evaluated on his or her performance while a probationer in contrast to his or her performance while serving in some other capacity -- i.e., as a temporary or provisional employee -- in Matter of DeCecca, 25 Misc2d 425, the court ruled that a probationary employee may not be dismissed until he or she has been given an opportunity to demonstrate his or her capacity to satisfactorily perform the duties of the position.

Finally, in York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows:

After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or made in bad faith.

The York decision is viewed as authority for requiring that a probationary employee be given administrative due process in the form of providing the employee with "notice and hearing" if the appointing authority decides to terminate the individual during his or her minimum period of probation.

Second Circuit rules failure to investigate discrimination complaint not adverse employment action

Second Circuit rules failure to investigate discrimination complaint not adverse employment action
Source: Jackson Lewis LLP. Reproduced with permission. Copyright © 2010, Jackson Lewis. Originally published by Jackson Lewis, LLP, at www.jacksonlewis.com. All rights reserved.

Affirming summary judgment for the employer in a race discrimination and retaliation action, the federal appeals court in New York has held that the employer’s failure to investigate a complaint of alleged employment discrimination is not an adverse employment action taken in retaliation for the filing of the same discrimination complaint. Fincher v. Depository Trust & Clearing Corp., No. 08-5013-cv (2d Cir. May 14, 2010). The Second Circuit has jurisdiction over Connecticut, New York, and Vermont.

The Facts

Cynthia Fincher worked for Depository Trust and Clearing Corporation (“DTCC”) as a Senior Auditor from 2004 until she resigned her employment on June 5, 2006. During that time, Fincher received several critical performance appraisals. In late March 2006, Fincher complained to Charles Smith, the Senior Director of Employee Relations at DTCC, that “black people were set up to fail at [the Auditing] department because they were not provided and given the same training opportunities as the white employees.” Fincher maintained that she asked Smith whether he planned to respond to her complaint, and Smith told her that he would not. In May 2006, Fincher claimed that her manager, Mark Hudson (“Hudson”), admitted to her that she did not receive proper training and that she was “discriminated against.” Fincher subsequently resigned, saying her resignation was due to racial discrimination, including inadequate training.

The Lawsuit

Fincher sued DTCC for, among other things, race discrimination, retaliation, harassment, and constructive discharge under the federal equal rights law (42 U.S.C. § 1981). DTCC moved for and the district court granted summary judgment on all claims. Fincher appealed and argued that: (1) DTCC’s failure to investigate her discrimination complaint constituted retaliation; (2) the failure to investigate her complaint created a hostile work environment; (3) she was constructively discharged based on the alleged hostile environment; and (4) the district court erred in failing to consider her testimony about Hudson’s alleged comment.

Appeals Court Decision

Addressing the retaliation claim, the Court noted that to establish a prima facie case of retaliation under Section 1981, a plaintiff must show that: she engaged in protected activity; the employer was aware of this activity; the employer took adverse action against the plaintiff; and a retaliatory motive played a part in the adverse employment action.

An adverse action is one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

The Court found that Fincher failed to establish a prima facie case of retaliation because the failure to investigate her alleged complaint was not an adverse action. It noted that “[a]n employee whose complaint is not investigated cannot be said to have thereby suffered a punishment for bringing that same complaint” because the employee is no worse off than she would have been had she not complained or if the employer investigated the complaint and denied it. Accordingly, the Court affirmed summary judgment on Fincher’s retaliation claim.

Turning to the hostile work environment and constructive discharge claims, the Court stated that, to establish a hostile work environment, Fincher “must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered.” Rejecting Fincher’s argument that DTCC’s failure to investigate her alleged complaint created a hostile environment, the Court observed that “the failure to investigate did not by itself alter the terms and conditions of Fincher’s employment; rather, it preserved the very circumstances that were the subject of the complaint” and therefore could not have contributed to a hostile environment. Where “an alleged constructive discharge stems from an alleged hostile work environment,” the Court explained, “a plaintiff must show working conditions so intolerable that a reasonable person would have felt compelled to resign.” Because Fincher failed to establish a hostile work environment, her constructive discharge claim also failed.

Finally, Fincher argued that the district court did not give sufficient consideration to her testimony about Hudson’s alleged admission to her that she was the victim of racial discrimination. The Court noted that district court appeared to discredit her testimony regarding Hudson’s alleged statement even though district courts may not discredit a witness’s testimony on a motion for summary judgment because juries make credibility assessments. Nevertheless, the Court affirmed summary judgment on Fincher’s discrimination claim because the comment, even if true, did not provide an adequate basis to deny summary judgment. Rather, the alleged remarks were a mere “scintilla” of evidence in light of their “offhand, conclusory nature.” It further noted that the alleged remarks were a “purported concession that Fincher was discriminated against; they were not themselves discriminatory.” Accordingly, the Court affirmed summary judgment on this claim, as well.

* *

Jackson Lewis, LLP, comments: This case is a significant win for employers by confirming the failure to investigate an alleged complaint of discrimination is not, in itself, an adverse employment action and cannot serve as the basis for a retaliation claim. Further, the failure to investigate alone is insufficient to create a hostile work environment. The case also highlights a party’s evidentiary burden when attempting to defeat summary judgment, i.e., a “scintilla” of evidence is insufficient. This is highly fact-specific inquiry, however.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/f4c71679-3bf6-43bd-9fcb-b89b9e59afc9/1/doc/08-5013-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f4c71679-3bf6-43bd-9fcb-b89b9e59afc9/1/hilite/

Withholding payment for accrued leave credits upon separation ruled permitted under the faithless servant doctrine

Withholding payment for accrued leave credits upon separation ruled permitted under the faithless servant doctrine
Bolin v Nassau County Bd. of Coop. Educ. Servs., 2010 NY Slip Op 31420(U), May 27, 2010, Supreme Court, Nassau County, Judge: Michele M. Woodard [Not selected for publication in the Official Reports]

Is an employee entitled to payment of his or her accrued, but unused, vacation credit upon his or her resignation? Typically the answer is yes.*

This was one of the issued presented by Mary Jane Bolin in her Article 78 petition seeking, among other things, a court order directing Nassau County Board of Cooperative Education Services to pay her for certain accrued leave credits.

Bolin had earlier resigned after she entered a plea of guilty to the crime of attempted grand larceny in the second degree** When Bolin asked BOCES to pay her $14,252.80 for her “banked vacation credit,”*** BOCES, in effect, deemed her resignation the equivalent of “termination for cause” and refused to pay her the cash value of such credit.

Judge Woodward, referring to the Appellate Division’s decision in Bolin v Nassau County Board of Cooperative Education Services 52 AD3d 704, said that in that case the Appellate Division distinguished between unused vacation leave and “vested banked vacation leave,” and found that Bolin failed to state a claim that BOCES was required to pay her the cash value of her 34-day vested banked vacation balance.

The court said that under the relevant collective bargaining agreement, BOCES had the discretion to deny such payment where an employee is separated is for cause. Citing Matter of William Floyd UFSD, 61 AD3 856, Judge Woodward commented that “In such instances the courts have found forfeiture of compensation, deferred or otherwise, warranted under the faithless servant doctrine.”

Authority to refuse to pay an individual for their accrued leave credits under similar circumstances is found in the Rules of the New York State Civil Service Commission, which Rules apply to employees of the State as an employer. 4 NYCRR 23.1, “Payment for accruals upon separation,” provides, in pertinent part, that “No employee who is removed from State service as a result of disciplinary action or who resigns after charges of incompetency or misconduct have been served upon him shall be entitled to compensation for vacation credits under the provisions of this Part.”


* Among exceptions to the general rule: 4 NYCRR 23.1 of Rules of the New York State Civil Service Commission, which apply to employees of the State as an employer, provides, in pertinent part, that the appointing authority may require, as a condition for such payment, that written notice of such resignation be given to the appointing authority at least two weeks prior to the last day of work.

** Bolin was sentenced to five years' probation and required to make restitution in the amount of $62,674.

*** Under the collective bargaining agreement, "Unit members who maintain a vacation day account consisting of more than forty (40) days (regular vacation leave days) will be granted a 'vested bank' of vacation days pursuant to the formula hereinafter set forth. . . Such members will be credited with two (2) days of “vested' vacation leave for every full year of Nassau BOCES service …. Upon resignation for purposes of retirement or resignation for purposes of separation other than a separation for cause, the unit member will be paid a cash sum equal to the number of days remaining in the unit member’s vested bank of vacation leave days.”

Judge Woodard’s decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_31420.pdf

The decision is Bolin v Nassau County Board of Cooperative Education Services 52 AD3d 704 is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_05692.htm