State law claims survive ADA claim dismissal

State law claims survive ADA claim dismissal
Giordano v City of New York, CA2, 274 F.3d 740

The Giordano case illustrates the fact that sometimes it is possible to maintain a discrimination lawsuit under state law notwithstanding the fact that the federal courts have dismissed similar claims alleging violations of federal law.

In such situations the state courts should make the determination based on state law and not consider the action taken by the federal courts with respect to the issues presented for adjudication.

In Giordano, a federal district court justice ruled that the fact that a police officer may be unable to work as a full-time patrol officer for one police department does not mean that he or she is impaired with respect to working in law enforcement for another police agency or in the private sector and thus is not disabled within the meaning of the ADA.

David Giordano sued the New York City Police Department under both federal and New York State human rights laws. He alleged that the Department terminated him in viola­tion of the ADA and New York State's Human Rights Law when it mistakenly "regard[ed] him as disabled" because of his took the drug Coumadin, an anticoagulant, daily and terminated his employment.

Giordano also contended that in discharging him without giving him a personal physical examination and by continuing to employ another full-duty police officer, Thomas Rowe, who also takes Coumadin daily, the Department violated his constitutional rights under the Due Process and the Equal Protection Clauses of the Fourteenth Amendment.

Giordano appealed the federal district court's granting the Department's motion for summary judgment, dismissing all of his claims that the Department had violated both federal and state discrimination law provisions.

The Circuit Court sustained the lower court's dismissal of Giordano's complaint with respect to federal law but ruled that "the district court erred by dismissing on the merits [Giordano's] pendent state law claims under the New York State Executive Law and the New York City Administrative Code."

Reversing the district court's ruling in part, the Circuit Court decided that "these claims would be more appropriately adjudicated in state court" and remanded the case back to the district court with its directions that the district court dismiss the remaining claims without prejudice to their being brought in an appropriate state forum. The basis for the court's dismissal of Giordano's ADA and other federal claims:

1. Giordano failed to offer evidence from which a reasonable juror could conclude that the Department "regarded him as disabled" within the meaning of the ADA; and

2. There was nothing in the record to suggest that the alleged disparate treatment of Giorda­no and Officer Rowe resulted from any illicit motivation of the Department.

The Supervising Chief Surgeon of Department recommended that Giordano "not be permitted to perform any patrol duties and be considered for disability retirement" based on the views of a number of physicians, including two department vascular surgeons, because the anticoagulation needed for Giordano's prosthetic aortic valve could result in catastrophic bleeding from even minor injuries.

Why did Giordano's state law claims survive? According to the ruling, New York's state and municipal laws define "disability" in broader terms than does the ADA. In contrast to the ADA, New York State's Human Rights Law did not require that Giordano show that his disability "substantially limits a major life activity."

This means, said the court, that a person may be disabled within the meanings of New York's state and municipal laws even if his or her impairment does not substantially limit a major life activity.

As a procedural matter, the Circuit Court noted that the statute governing supplemental jurisdiction, [28 USC 1367] did not require dismissal of pendent state-law claims such as Giordano's where all of the federal claims have been dismissed. However, said the court, "if it appears that the state issues substantially predominate, whether in terms of proof, the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals." This solution was determined to be appropriate in Giordano's situation.

Why? The Circuit Court decided that "the state-law claims should be dismissed so that state courts can, if so called upon, decide for themselves whatever questions of state law this case may present" and "we do not think that those courts should be bound, or think themselves bound, by principles of collateral estoppel or otherwise, to any findings or conclusions reached by the district court in its discussion of whether, as a matter of law, Giordano was qualified to perform the essential functions of his job."

Probationary termination

Probationary termination
Higgins v La Paglia, 281 A.D.2d 679, appeal dismissed, 96 N.Y.2d 854

The Ulster County Sheriff Michael L. Paglia terminated correction officer Bradley Higgins at the end of his one-year probationary period. Higgins filed a grievance and initiated an Article 78 action seeking to overturn the Sheriff's decision.

Higgins claimed that he held tenure and thus was entitled to "notice and hearing" before he could be terminated. He cited a statement in the Ulster County Employees' Handbook that defined the probationary term as being a minimum of eight weeks and a maximum of 26 weeks.

The court rejected this argument, pointing out that the statement in the handbook contravenes the Ulster County Civil Service Rules and Regulations dealing with probation.

Finding that Higgins was a probationary employee at the time of his termination, the court said that he could be dismissed without a hearing unless he proffered sufficient evidence to create a question of fact as to whether his discharge was unrelated to work performance, motivated by a constitutionally impermissible purpose or made in bad faith.

Appling the correct test in resolving a challenge to an administrative determination

Appling the correct test in resolving a challenge to an administrative determination
Matter of Heather Duncan v Klein, 38 A.D.3d 380

Heather Duncan held certification as a school bus escort and worked for the New York City Office of Pupil Transportation. The Office alleged that Duncan hit a student with her umbrella and recommended that her school bus escort certification be revoked.

A “disciplinary conference” was held pursuant to the Chancellor's Regulation C-100. It was determined that there was a “pulling/pushing match” over the umbrella and that such conduct was “unprofessional and unsafe.” The penalty recommended: “a suspension for the time already served with no back pay.”

Rather than suspend Duncan, the Chancellor elected to impose the penalty recommended by the Office of Pupil Transportation and revoked Duncan’s certification. Duncan sued in an effort to have her certification restored to her.

The test the Appellate Division said applied in this case was whether the Chancellor’s action “was arbitrary and capricious” in contrast to applying the “substantial evidence” test to the Chancellor’s determination.

As the court explained, the disciplinary conference was not conducted pursuant to the Constitution or any statute. Therefore, it was properly reviewed under the arbitrary and capricious standard rather than substantial evidence standard. Applying that “arbitrary and capricious” standard, the court said that the record provides “a rational basis for disbelieving Duncan’s version of the facts and finding, instead, that she actively hit the student and was not merely defending herself.”

The court concluded that the penalty of revocation her certification did not shock one’s conscience and dismissed Duncan’s appeal.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2007/2007_02469.htm

FMLA leave for domestic partners: the new federal employee leave regulations a stalking horse

FMLA leave for domestic partners: the new federal employee leave regulations a stalking horse
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

During the last presidential campaign, candidate Obama favored expansion of the FMLA to allow an employee to take job-protected leave to care for a same sex domestic partner suffering with a serious health condition. Pending legislation (H.R. 3047) seeks to make such a change law. Currently, the Defense of Marriage Act excludes same-sex marriages, including civil unions or domestic partnerships, from FMLA coverage (by defining a "spouse" as member of the opposite sex).

Given the President's expressed support for changes to the FMLA, and the Democrats control of Congress (at least until mid-term elections this November), it is possible that legislation to modify the FMLA, including the addition of domestic partnerships, might be seriously considered.

With regard to expansion of the FMLA to cover same-sex partnerships, what that legislation might look like may be gleaned from recent regulatory changes made by the US Office of Personnel Management (OPM) allowing some federal employees to take leave (but not FMLA leave) for a domestic partner. See 75 FR 33491-33497 (June 14, 2010). The regulations are effective July 14, 2010.

On June 17, 2009, President Obama directed OPM to clarify that existing employment benefits enjoyed by federal workers extended to same-sex domestic partners. OPM did so by altering the definition of a "family member" to include a domestic partner in a committed relationship.

The benefits extended included the federal employees ability to use sick leave, funeral leave, voluntary leave transfer, voluntary leave bank, and emergency leave transfer in relation to .
Domestic partner means an adult in a committed relationship with another adult, including both same-sex and opposite-sex relationships.

Opposite-sex domestic partnerships would cover common law marriages in States that do not recognize common law marriages. In States that already recognize common law marriages, the inclusion of opposite-sex domestic partnerships suggests coverage for committed relationships that fall short of a common law marriage.

Committed relationship means one in which the employee, and the domestic partner of the employee, are each other's sole domestic partner (and are not married to or domestic partners with anyone else); and share responsibility for a significant measure of each other's common welfare and financial obligations. This includes, but is not limited to same-ex and opposite-sex relationships granted legal recognition by a State or the District of Columbia as a marriage or analogous relationship (e.g., civil union).

OPM rejected suggestions that it issue regulations governing what documentation an agency may request to substantiate a covered domestic partnership. It noted that agency's typically do not ask for documentation to substantiate leave to prove an employee's relationship with a parent, brother, sister, or spouse. OPM implied that, absent suspicion of leave abuse, it should follow that practice where an employee claims the need for leave for a domestic partner. Where leave abuse is suspected, OPM indicated that agencies have the existing authority to request documentation to substantiate a request for leave, and that they should follow the same procedures for all employees where they suspect leave abuse.

Mr. Bosland Comments: OPM's definition of a domestic partner in a committed relationship is, in my opinion, needlessly vague and over broad. Specifically, it is unclear what it means to "share responsibility for a significant measure of each other's common welfare and financial obligations." The terms are undefined. Other than rejecting application of the definition to a roommate, OPM fails to give examples to animate the meaning of this key phrase. Certainly, the phrase applies to common law marriages, civil unions, or domestic partnerships in States that recognize such relationships. It is unclear, at least to me, why OPM would not adopt a definition that ties the relationship to the attributes of a common law marriage, domestic partnership, or civil union, as those terms have been recognized by some States for years. Absent such a tether, OPM invites a flood of litigation to flesh out the contours of a committed relationship, particularly in the area above roommate and below recognized common law marriage, civil union, or domestic partnership. The point of a regulation is to give employers and employees useful guidance so that they know what to expect and can conform their conduct to meet legal obligations. This regulation, in my opinion, falls short of meeting that standard.

The above regulatory changes do not apply to the FMLA - yet. That will require modification of the Defense of Marriage Act (DOMA). If, however, this is any example of the standard to be applied in the event the DOMA and FMLA are modified to include domestic partnerships, employers and employees should be prepared for the tsunami of litigation that will ensue over the level of commitment to the relationship. The good news is that such a change should make the attorneys very happy.