NLRB holds that union commited an unfair labor practice by disciplining a member for reporting another employee's safety violation
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Operating Engineers, 355 NLRB No. 25 (April 19, 2010), is an interesting case. The Board ruled 3-0 that a union violated Section 8(b)(1)(A) by fining a member $2,500 for reporting another employee's safety violation. As the Board stated:
The Respondent contends that by disciplining Overtonit did not restrain or coerce him in the exercise of his rights under Section 7 of the Act because Overton acted alone and not concertedly.
The Board has consistently found Section 8(b)(1)(A) violated, however, where a union disciplines an employee for reporting a work-rule infraction by another employee, if the disciplined employee is under a duty to make such reports, notwithstanding that the disciplined employee acted alone. See Teamsters Local 439 (University of the Pacific), 324 NLRB 1096 (1997); Carpenters District Council of SanDiego (Hopeman Bros.), 272 NLRB 584 (1984); Chemical Workers Local 604 (Essex International), 233 NLRB 1239 (1977), enfd. mem. 588 F.2d 838 (7th Cir. 1978).
We find these precedents controlling.
Mitchell H. Rubinstein
Randall Comments: Although NLRB determinations are neither binding on PERB nor controlling with respect to constituting a precedent for the purposes of the Taylor Law (see Section 209-a.3, Civil Service Law), this decision is instructive as its rationale may be adopted by PERB, arbitrators and the courts under similar circumstances.
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
June 23, 2010
United States Supreme Court holds city’s review of employee messages on city pager was reasonable under the circumstances
United States Supreme Court holds city’s review of employee messages on city pager was reasonable under the circumstances
Source: Meyers Nave PLC. Reproduced with permission. Copyright © 2010, Meyers Nave. All rights reserved
In City of Ontario v. Quon, the U.S. Supreme Court issued a narrow ruling that the City's review of a SWAT officer's text messages sent over a City-issued pager was reasonable in the circumstances of that case, and thus did not violate the Fourth Amendment to the Constitution. But the Court avoided answering two broader questions about how courts should analyze non-investigatory, work-related searches by public employers—questions on which public entities had hoped Quon would provide guidance. The questions Quon left open are: (1) when do public employees have a “reasonable expectation of privacy” in their offices or electronic communications; and (2) if an employee has such an expectation, what is the test for whether an employer’s search was reasonable?
The City of Ontario adopted a written policy governing use of City computers, the Internet and email. The policy prohibited all but light personal use of City-owned electronic equipment, and specified that employees had no reasonable expectation of privacy or confidentiality in such use. The City then bought text pagers for its SWAT officers, and told them that the electronic communications policy applied to the pagers.
When a few SWAT officers exceeded the character limit on the City's pager plan, the lieutenant in charge of billing said he would not review their messages to separate the personal from the work-related, so long as officers who exceeded the limit paid the overage charges. Sergeant Quon interpreted this billing practice to mean that his text messages were no longer subject to the City-wide electronic communications policy. A few months later, the Police Chief ordered an audit of the text messages of officers who had consistently exceeded the character limit in the City’s pager plan, in order to determine if the limit was too low. The auditing officer redacted all messages sent during non-work hours. Sergeant Quon sued the City, contending that the review of his messages violated the Fourth Amendment.
A Fourth Amendment analysis involves two questions: (1) did the person have a reasonable expectation of privacy in the place searched; and (2) if so, was the search reasonable? In Quon, Justice Kennedy’s majority opinion approached both questions with extreme caution. The Court declined to set broad rules for when an employee’s expectations of privacy in electronic communications on employer-provided equipment will qualify as “reasonable” in the eyes of society, given the still-evolving role of electronic communications.
The Court also declined to decide what test to apply in future cases to determine if a public employee has a reasonable expectation of privacy in his or her office or electronic communications. The Court noted two possible approaches: a case-by-case evaluation to decide if an employee has a reasonable expectation of privacy under the circumstances, or a rule that the Fourth Amendment always applies to public employees’ offices or electronic communications. Quon does not choose between those approaches. Instead, the Court simply assumed for the sake of argument that Quon had a reasonable expectation of privacy in the text messages.
The Court similarly assumed that the City's review of the text messages was a ”search” subject to the Fourth Amendment, and that the principles governing the search of a public employee's office apply equally to searches in the electronic sphere. (Quon, Slip Op. at 12.)
The Court then discussed whether the search was permissible. At the outset, the Court noted a point raised by the League of California Cities and the California State Association of Counties in amicus briefs prepared by Meyers Nave. While warrantless searches are generally considered automatically unreasonable, one well-established exception to that rule is the "special needs" exception for government workplaces. (Quon, Slip Op. at 12.) That exception made a warrant unnecessary in Quon’s case, so the question was whether the search was reasonable.
The Court noted two possible approaches to whether a given search is reasonable—again, without deciding which approach to adopt for future cases. Under the first approach, a court must examine all the circumstances and ask: 1) was the search justified at its inception; and (2) were the measures adopted by the agency reasonably related to the objectives of the search and not excessively intrusive? (Quon, Slip Op. at 12.) Under the second approach, all “government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context” are always reasonable. (Id. at 9.)
Under the first approach, the Court found the search in Quon justified at its inception because the City had a legitimate interest in ensuring that the character limit on the City’s pager plan was appropriate. (Quon, Slip Op. at 13.)
The Court also found the scope of the search reasonable because the Department limited the search to two months’ worth of messages, and redacted all off-duty messages. (Ibid.) The Court added that, although it was assuming for argument’s sake that Quon had some reasonable expectation of privacy in the text messages, Quon could not reasonably have assumed that his messages could never be searched. (Ibid.) A reasonable law enforcement employee would realize that the text messages might be audited to determine whether the pager was being appropriately used, or to assess the SWAT team's performance in a particular emergency. (Id. at 14.) The Court then readily found that, for the same reasons, the search was reasonable under the second, “searches regarded as reasonable and normal for private employers” approach. Thus, it did not decide which of the two approaches courts must use in the future.
Justice Scalia filed a concurring opinion contending that the majority opinion improperly gave lower courts a “heavy-handed hint” about how to address the “reasonable expectation of privacy” issue. (Quon, Slip Op. (Scalia, J., concurring), at 2.) The Quon majority spent three pages discussing whether Quon’s expectation of privacy was reasonable in the circumstances—before ultimately saying that it was not going to decide that question, or even decide whether that question is relevant. Justice Scalia warned that lower courts will read this as a hint that, in future cases, they should follow the same case-by-case approach. (Ibid.)
Basically, Quon leaves governmental agencies with no clear standards to use in applying electronic communication policies. As Justice Scalia suggests, Quon will mean that, in each future case, public entities will very likely have to argue whether a given employee had a reasonable expectation of privacy in a particular office or electronic communication medium.
At most, governmental agencies can now be assured that: (1) a search warrant is not required for non-investigatory, work-related searches of electronic communications sent via publicly owned equipment, based on the "special needs" exception to the warrant requirement; and (2) if they take reasonable precautions to limit the intrusiveness and scope of a search to what is necessary to achieve its purpose, courts will likely find the search reasonable. However, the uncertainty and risk of litigation in this area mean that public entities should proceed with caution and consult legal counsel if possible before searching employees’ workspaces or electronic communications.
For more information on the Quon opinion or related legal issues regarding public employers and employees, contact Joseph Quinn or Nancy Thorington at 800.464.3559.
Source: Meyers Nave PLC. Reproduced with permission. Copyright © 2010, Meyers Nave. All rights reserved
In City of Ontario v. Quon, the U.S. Supreme Court issued a narrow ruling that the City's review of a SWAT officer's text messages sent over a City-issued pager was reasonable in the circumstances of that case, and thus did not violate the Fourth Amendment to the Constitution. But the Court avoided answering two broader questions about how courts should analyze non-investigatory, work-related searches by public employers—questions on which public entities had hoped Quon would provide guidance. The questions Quon left open are: (1) when do public employees have a “reasonable expectation of privacy” in their offices or electronic communications; and (2) if an employee has such an expectation, what is the test for whether an employer’s search was reasonable?
The City of Ontario adopted a written policy governing use of City computers, the Internet and email. The policy prohibited all but light personal use of City-owned electronic equipment, and specified that employees had no reasonable expectation of privacy or confidentiality in such use. The City then bought text pagers for its SWAT officers, and told them that the electronic communications policy applied to the pagers.
When a few SWAT officers exceeded the character limit on the City's pager plan, the lieutenant in charge of billing said he would not review their messages to separate the personal from the work-related, so long as officers who exceeded the limit paid the overage charges. Sergeant Quon interpreted this billing practice to mean that his text messages were no longer subject to the City-wide electronic communications policy. A few months later, the Police Chief ordered an audit of the text messages of officers who had consistently exceeded the character limit in the City’s pager plan, in order to determine if the limit was too low. The auditing officer redacted all messages sent during non-work hours. Sergeant Quon sued the City, contending that the review of his messages violated the Fourth Amendment.
A Fourth Amendment analysis involves two questions: (1) did the person have a reasonable expectation of privacy in the place searched; and (2) if so, was the search reasonable? In Quon, Justice Kennedy’s majority opinion approached both questions with extreme caution. The Court declined to set broad rules for when an employee’s expectations of privacy in electronic communications on employer-provided equipment will qualify as “reasonable” in the eyes of society, given the still-evolving role of electronic communications.
The Court also declined to decide what test to apply in future cases to determine if a public employee has a reasonable expectation of privacy in his or her office or electronic communications. The Court noted two possible approaches: a case-by-case evaluation to decide if an employee has a reasonable expectation of privacy under the circumstances, or a rule that the Fourth Amendment always applies to public employees’ offices or electronic communications. Quon does not choose between those approaches. Instead, the Court simply assumed for the sake of argument that Quon had a reasonable expectation of privacy in the text messages.
The Court similarly assumed that the City's review of the text messages was a ”search” subject to the Fourth Amendment, and that the principles governing the search of a public employee's office apply equally to searches in the electronic sphere. (Quon, Slip Op. at 12.)
The Court then discussed whether the search was permissible. At the outset, the Court noted a point raised by the League of California Cities and the California State Association of Counties in amicus briefs prepared by Meyers Nave. While warrantless searches are generally considered automatically unreasonable, one well-established exception to that rule is the "special needs" exception for government workplaces. (Quon, Slip Op. at 12.) That exception made a warrant unnecessary in Quon’s case, so the question was whether the search was reasonable.
The Court noted two possible approaches to whether a given search is reasonable—again, without deciding which approach to adopt for future cases. Under the first approach, a court must examine all the circumstances and ask: 1) was the search justified at its inception; and (2) were the measures adopted by the agency reasonably related to the objectives of the search and not excessively intrusive? (Quon, Slip Op. at 12.) Under the second approach, all “government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context” are always reasonable. (Id. at 9.)
Under the first approach, the Court found the search in Quon justified at its inception because the City had a legitimate interest in ensuring that the character limit on the City’s pager plan was appropriate. (Quon, Slip Op. at 13.)
The Court also found the scope of the search reasonable because the Department limited the search to two months’ worth of messages, and redacted all off-duty messages. (Ibid.) The Court added that, although it was assuming for argument’s sake that Quon had some reasonable expectation of privacy in the text messages, Quon could not reasonably have assumed that his messages could never be searched. (Ibid.) A reasonable law enforcement employee would realize that the text messages might be audited to determine whether the pager was being appropriately used, or to assess the SWAT team's performance in a particular emergency. (Id. at 14.) The Court then readily found that, for the same reasons, the search was reasonable under the second, “searches regarded as reasonable and normal for private employers” approach. Thus, it did not decide which of the two approaches courts must use in the future.
Justice Scalia filed a concurring opinion contending that the majority opinion improperly gave lower courts a “heavy-handed hint” about how to address the “reasonable expectation of privacy” issue. (Quon, Slip Op. (Scalia, J., concurring), at 2.) The Quon majority spent three pages discussing whether Quon’s expectation of privacy was reasonable in the circumstances—before ultimately saying that it was not going to decide that question, or even decide whether that question is relevant. Justice Scalia warned that lower courts will read this as a hint that, in future cases, they should follow the same case-by-case approach. (Ibid.)
Basically, Quon leaves governmental agencies with no clear standards to use in applying electronic communication policies. As Justice Scalia suggests, Quon will mean that, in each future case, public entities will very likely have to argue whether a given employee had a reasonable expectation of privacy in a particular office or electronic communication medium.
At most, governmental agencies can now be assured that: (1) a search warrant is not required for non-investigatory, work-related searches of electronic communications sent via publicly owned equipment, based on the "special needs" exception to the warrant requirement; and (2) if they take reasonable precautions to limit the intrusiveness and scope of a search to what is necessary to achieve its purpose, courts will likely find the search reasonable. However, the uncertainty and risk of litigation in this area mean that public entities should proceed with caution and consult legal counsel if possible before searching employees’ workspaces or electronic communications.
For more information on the Quon opinion or related legal issues regarding public employers and employees, contact Joseph Quinn or Nancy Thorington at 800.464.3559.
The American Recovery and Reinvestment Act of 2009 (ARRA), as amended
The American Recovery and Reinvestment Act of 2009 (ARRA), as amended
Source: US Department of Labor, Employee Benefits Security Administration
The Act, as amended, provides for premium reductions for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA. Eligible individuals pay only 35 percent of their COBRA premiums and the remaining 65 percent is reimbursed to the coverage provider through a tax credit.
To qualify, individuals must experience a COBRA qualifying event that is the involuntary termination of a covered employee's employment.
The involuntary termination must generally occur during the period that began September 1, 2008 and ends on May 31, 2010.
An involuntary termination of employment that occurs on or after March 2, 2010 but by May 31, 2010 and follows a qualifying event that was a reduction of hours that occurred at any time from September 1, 2008 through May 31, 2010 is also a qualifying event for purposes of ARRA.
The premium reduction applies to periods of health coverage that began on or after February 17, 2009 and lasts for up to 15 months. See Continuing Extension Act of 2010.
Source: US Department of Labor, Employee Benefits Security Administration
The Act, as amended, provides for premium reductions for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA. Eligible individuals pay only 35 percent of their COBRA premiums and the remaining 65 percent is reimbursed to the coverage provider through a tax credit.
To qualify, individuals must experience a COBRA qualifying event that is the involuntary termination of a covered employee's employment.
The involuntary termination must generally occur during the period that began September 1, 2008 and ends on May 31, 2010.
An involuntary termination of employment that occurs on or after March 2, 2010 but by May 31, 2010 and follows a qualifying event that was a reduction of hours that occurred at any time from September 1, 2008 through May 31, 2010 is also a qualifying event for purposes of ARRA.
The premium reduction applies to periods of health coverage that began on or after February 17, 2009 and lasts for up to 15 months. See Continuing Extension Act of 2010.
June 22, 2010
Section 3020-a disciplinary appeals
Section 3020-a disciplinary appeals
Austin v NYC Board of Education, 280 A.D.2d 365
The Austin decision by the Appellate Division, First Department, sets out the standards followed by the courts in considering appeals from Section 3020-a disciplinary determinations. Typically these standards are considered in connection with motions by the parties to confirm or vacate the hearing officer's decision.
The ruling also addresses an issue that is frequently of concern in such disciplinary proceedings: the acceptance and consideration of hearsay evidence by the hearing officer.
Wallace Austin was served with disciplinary charges pursuant to Section 3020-a of the Education Law. He was found guilty of certain of the charges and specifications. A State Supreme Court justice overturned the hearing officer's ruling on the basis that it was not supported by substantial evidence in the record. The Appellate Division, however, said that the lower court had applied an incorrect standard in reviewing Austin's petition and vacated the lower court's determination.
According to the Appellate Division's decision, the lower court had applied the standard applicable in reviewing challenges to administrative determinations brought pursuant to Article 78 of the Civil Practice Law and Rules [CPLR].
The Article 78 standard for review: Was the administrative determination supported by substantial evidence in the record.
In contrast, the standard of review of Section 3020-a disciplinary decisions is controlled by CPLR Article 75, not the standards to be met in resolving a challenge brought pursuant to CPLR Article 78.
Essentially a CPLR Article 75 proceeding concerns challenges to arbitration awards while an Article 78 proceeding tests whether an administrative determination was arbitrary or capricious.
The Appellate Division pointed out that Section 3020-a(5) specifically requires that a court's review of a Section 3020-a hearing officer's decision in accordance with the standard spelled out in CPLR 7511.
The sole grounds set out in Article 75 for overturning such a determination:
1. Proof of corruption, fraud or misconduct in procuring an award;
2. The partiality of the arbitrator;
3. The arbitrator exceeded his or her authority; or
4. The arbitrator failed to follow the procedures set out in Article 75.
In addition to these statutory standards justifying the vacating of the arbitration award, the courts have declared arbitration awards that violate a strong public policy null and void.
The Appellate Division said that since Austin failed to show any misconduct, bias, excess of power or procedural defects on the part of the hearing officer, [or any violation of a strong public policy] his petition must be dismissed.
In addition, the court observed that the rules governing Section 3020-a disciplinary hearing procedures do not require compliance with technical rules of evidence. Accordingly, a hearing officer may accept and consider hearsay evidence in such an administrative proceeding.
The Appellate Division also commented that "the hearing officer credited the testimony of the Principal and Assistant Principal and found [Austin's] testimony to be inconsistent and incredible."
There are other critical elements to be remembered in connection with appealing a Section 3020-a disciplinary determination.
For example, in addition to the limited grounds for vacating the arbitration award listed in Section 7511, Section 3020-a sets a very short statute of limitations for filing a petition to overturn or modify the award as well as setting other limitations in appealing such decisions.
Section 3020-a.5 provides that:
1. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to CPLR Section 7511.
2. The court’s review shall be limited to the grounds set forth in Article 75. Further, the hearing panel’s determination shall be deemed to be final for the purpose of such proceeding.3. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.
Keeping in mind the 10-day limitation for perfecting an appeal from a Section 3020-a decision, it should be remembered that the basic rules concerning effective service of a final determination for the purposes of filing a timely appeal are as follows:
1. If the individual is not represented by an attorney or by a union official, the individual must be served to begin the statute of limitations running.
2. If an employee is represented by an attorney, the administrative body may send a copy of the determination to the employee but it must serve the attorney to begin the running of the statute of limitations.
3. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.
Austin v NYC Board of Education, 280 A.D.2d 365
The Austin decision by the Appellate Division, First Department, sets out the standards followed by the courts in considering appeals from Section 3020-a disciplinary determinations. Typically these standards are considered in connection with motions by the parties to confirm or vacate the hearing officer's decision.
The ruling also addresses an issue that is frequently of concern in such disciplinary proceedings: the acceptance and consideration of hearsay evidence by the hearing officer.
Wallace Austin was served with disciplinary charges pursuant to Section 3020-a of the Education Law. He was found guilty of certain of the charges and specifications. A State Supreme Court justice overturned the hearing officer's ruling on the basis that it was not supported by substantial evidence in the record. The Appellate Division, however, said that the lower court had applied an incorrect standard in reviewing Austin's petition and vacated the lower court's determination.
According to the Appellate Division's decision, the lower court had applied the standard applicable in reviewing challenges to administrative determinations brought pursuant to Article 78 of the Civil Practice Law and Rules [CPLR].
The Article 78 standard for review: Was the administrative determination supported by substantial evidence in the record.
In contrast, the standard of review of Section 3020-a disciplinary decisions is controlled by CPLR Article 75, not the standards to be met in resolving a challenge brought pursuant to CPLR Article 78.
Essentially a CPLR Article 75 proceeding concerns challenges to arbitration awards while an Article 78 proceeding tests whether an administrative determination was arbitrary or capricious.
The Appellate Division pointed out that Section 3020-a(5) specifically requires that a court's review of a Section 3020-a hearing officer's decision in accordance with the standard spelled out in CPLR 7511.
The sole grounds set out in Article 75 for overturning such a determination:
1. Proof of corruption, fraud or misconduct in procuring an award;
2. The partiality of the arbitrator;
3. The arbitrator exceeded his or her authority; or
4. The arbitrator failed to follow the procedures set out in Article 75.
In addition to these statutory standards justifying the vacating of the arbitration award, the courts have declared arbitration awards that violate a strong public policy null and void.
The Appellate Division said that since Austin failed to show any misconduct, bias, excess of power or procedural defects on the part of the hearing officer, [or any violation of a strong public policy] his petition must be dismissed.
In addition, the court observed that the rules governing Section 3020-a disciplinary hearing procedures do not require compliance with technical rules of evidence. Accordingly, a hearing officer may accept and consider hearsay evidence in such an administrative proceeding.
The Appellate Division also commented that "the hearing officer credited the testimony of the Principal and Assistant Principal and found [Austin's] testimony to be inconsistent and incredible."
There are other critical elements to be remembered in connection with appealing a Section 3020-a disciplinary determination.
For example, in addition to the limited grounds for vacating the arbitration award listed in Section 7511, Section 3020-a sets a very short statute of limitations for filing a petition to overturn or modify the award as well as setting other limitations in appealing such decisions.
Section 3020-a.5 provides that:
1. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to CPLR Section 7511.
2. The court’s review shall be limited to the grounds set forth in Article 75. Further, the hearing panel’s determination shall be deemed to be final for the purpose of such proceeding.3. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.
Keeping in mind the 10-day limitation for perfecting an appeal from a Section 3020-a decision, it should be remembered that the basic rules concerning effective service of a final determination for the purposes of filing a timely appeal are as follows:
1. If the individual is not represented by an attorney or by a union official, the individual must be served to begin the statute of limitations running.
2. If an employee is represented by an attorney, the administrative body may send a copy of the determination to the employee but it must serve the attorney to begin the running of the statute of limitations.
3. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.
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."
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.
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
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
June 21, 2010
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.
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.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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