Sovereign immunity
Alston v State of New York, Ct. of Appeals, 97 N.Y.2d 159
The doctrine of sovereign immunity generally shields a state from suit absent its consent. In Alden v Maine, 527 US 706, the Supreme Court of the United States found that State sovereign immunity is "implicit in the constitutional design." States have claimed sovereign immunity with respect to their being sued in federal court for alleged violation of various acts of Congress including the Fair Labor Standards Act. New York's claim of sovereign immunity was a critical element in resolving the Alston case.
In 1991, Benjamin Alston and 102 other State parole officers sued the State, claiming that it had failed to pay them overtime in violation of the Fair Labor Standards Act. In 1997, the United States District Court, Northern District of New York, dismissed the action based on the US Supreme Court's ruling in Seminole Tribe of Florida v Florida, 517 US 44. In Seminole the high court said that Article I of the Constitution did not give Congress the power to defeat a states' Eleventh Amendment sovereign immunity from suits commenced or prosecuted in Federal courts.
Alston appealed to the Second Circuit United States Court of Appeals, but the parties agreed to a voluntary dismissal of the action in view of the fact that the Second Circuit had ruled against other claimants in a similar case.
In 1998, Alston filed the same lawsuit in the New York's State Court of Claims. The Court of Claims dismissed the complaint holding that it lacked subject matter jurisdiction because Alston's petition was untimely.
The Appellate Division affirmed the Court of Claims' ruling. It said that "when New York waived its immunity subject to a six-month Statute of Limitations for FLSA claims brought against it as provided by the Court of Claims Act Section 10 ..., such limitation could not be overridden by the Article I powers delegated to Congress, whereby a two or three-year Statute of Limitations was created for FLSA claims." In other words, Alston should have filed his petition with the Court of Claims within six months of the "accrual of his cause of action." The Court of Appeals sustained the Appellate Division's determination.
In the words of the Court of Appeals:
"The issue before us is whether, under the terms of the waiver of sovereign immunity found in Court of Claims Act Section 8, the State retained its immunity as to these claims because claimants failed to comply with the time limitations set forth in Court of Claims Act Section 10(4), upon which the [State's] waiver was conditioned."
The court's conclusion: the State retained its immunity. Why? Because, explained the court, although Section 8 of the Court of Claims Act provides that "the state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article."
Accordingly, the State's waiver of sovereign immunity was not absolute, but was conditioned upon a claimant's compliance with the limitations on the waiver, including the relevant filing deadlines.
The Court of Appeals ruled that "because claimants failed to file their claims in the Court of Claims within six months after their accrual ... and did not timely seek relief from the court under Court of Claims Act 10(6), the State was entitled to dismissal of this claim on sovereign immunity grounds.
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 25, 2010
Terminating an employee during a disciplinary probation period
Terminating an employee during a disciplinary probation period
Fortner v NYC Dept. of Corrections, 280 A.D.2d 381
In many cases disciplinary charges are "settled" by the employee agreeing to serve a "disciplinary probationary period." The majority of such settlements set out the terms and conditions of the probation and typically provide for the termination of the individual without any further hearing if he or she violates the terms of the settlement.
Steven T. Fortner was serving a disciplinary probation period following the settlement of disciplinary charges that had been filed against him by the New York City Department of Corrections.
The department terminated him, contending that "he violated the terms of his limited probation as set forth in his negotiated plea agreement."
Fortner sued, alleging that he had been terminated in bad faith. The court disagreed, finding that Fortner produced no evidence to support his claim that his dismissal was motivated by bad faith.
Fortner had also asked the court to annul his termination and have the matter remitted to the Department "for reconsideration of the sanction."
The Appellate Division decided that such action was not appropriate under the circumstances since Fortner's termination did not "shock the judicial conscience."
Further, said the court, terminating Fortner for violating the terms of his disciplinary probationary period did not constitute an abuse of discretion on the part of the appointing authority.
The lesson here is that the courts will sustain the termination of an individual serving a disciplinary probation period without a hearing if the employee is discharged for violating or failing to comply with the terms of the disciplinary probation agreed upon.
Suppose the court finds that the employee's termination was inconsistent with the terms and conditions of his or her disciplinary probationary period?
As the Taylor decision indicates [Taylor v Cass, 505 NYS2d 929], in such a situation the individual will be reinstated with back salary.
The Taylor court determined that under the terms of Taylor's disciplinary probation, he could be terminated without any hearing if, in the opinion of his superior, Taylor's job performance was "adversely affected" by his "intoxication on the job."
The court said the appointing authority gave two reasons for it terminating Taylor for violating the terms of his disciplinary probationary period:
1. Taylor's "failing to give a fair day's work"; and
2. Taylor's "sleeping during scheduled working hours."
However, the court found that Taylor's termination was improper because Taylor was not terminated for the sole reason specified in the settlement: his intoxication on the job adversely affecting his performance of the job.
Sometimes the disciplinary probation established resulting from the settlement of the disciplinary action does not limit the appointing authority's discretion in terminating the employee. The Wright case demonstrates such a situation.
In Wright v City of New York, 596 NYS2d 372, the Appellate Division ruled that an employee who had agreed to a disciplinary probation in settlement of disciplinary charges filed against him that provided that his probation status would be the same as any other probationary employee was not entitled to a pre-termination hearing when he was dismissed because of subsequent incidents.
In other words, under the terms of Wright's disciplinary probation he was treated as a "new employee" and he could be summarily terminated for any lawful reason.
Fortner v NYC Dept. of Corrections, 280 A.D.2d 381
In many cases disciplinary charges are "settled" by the employee agreeing to serve a "disciplinary probationary period." The majority of such settlements set out the terms and conditions of the probation and typically provide for the termination of the individual without any further hearing if he or she violates the terms of the settlement.
Steven T. Fortner was serving a disciplinary probation period following the settlement of disciplinary charges that had been filed against him by the New York City Department of Corrections.
The department terminated him, contending that "he violated the terms of his limited probation as set forth in his negotiated plea agreement."
Fortner sued, alleging that he had been terminated in bad faith. The court disagreed, finding that Fortner produced no evidence to support his claim that his dismissal was motivated by bad faith.
Fortner had also asked the court to annul his termination and have the matter remitted to the Department "for reconsideration of the sanction."
The Appellate Division decided that such action was not appropriate under the circumstances since Fortner's termination did not "shock the judicial conscience."
Further, said the court, terminating Fortner for violating the terms of his disciplinary probationary period did not constitute an abuse of discretion on the part of the appointing authority.
The lesson here is that the courts will sustain the termination of an individual serving a disciplinary probation period without a hearing if the employee is discharged for violating or failing to comply with the terms of the disciplinary probation agreed upon.
Suppose the court finds that the employee's termination was inconsistent with the terms and conditions of his or her disciplinary probationary period?
As the Taylor decision indicates [Taylor v Cass, 505 NYS2d 929], in such a situation the individual will be reinstated with back salary.
The Taylor court determined that under the terms of Taylor's disciplinary probation, he could be terminated without any hearing if, in the opinion of his superior, Taylor's job performance was "adversely affected" by his "intoxication on the job."
The court said the appointing authority gave two reasons for it terminating Taylor for violating the terms of his disciplinary probationary period:
1. Taylor's "failing to give a fair day's work"; and
2. Taylor's "sleeping during scheduled working hours."
However, the court found that Taylor's termination was improper because Taylor was not terminated for the sole reason specified in the settlement: his intoxication on the job adversely affecting his performance of the job.
Sometimes the disciplinary probation established resulting from the settlement of the disciplinary action does not limit the appointing authority's discretion in terminating the employee. The Wright case demonstrates such a situation.
In Wright v City of New York, 596 NYS2d 372, the Appellate Division ruled that an employee who had agreed to a disciplinary probation in settlement of disciplinary charges filed against him that provided that his probation status would be the same as any other probationary employee was not entitled to a pre-termination hearing when he was dismissed because of subsequent incidents.
In other words, under the terms of Wright's disciplinary probation he was treated as a "new employee" and he could be summarily terminated for any lawful reason.
June 24, 2010
Governor Paterson accepts final report of Task Force on Public Retiree Health Insurance
Governor Paterson accepts final report of Task Force on Public Retiree Health Insurance
Source: Office of the Governor
On June 23, 2101 Governor David A. Paterson accepted the final report of the Task Force on Public Employee Retirement Health Care Benefits. Established by Executive Order No. 15.
The Task Force was tasked with reviewing issues such as the level and cost of benefits received by New York State public employees and retirees, the degree to which those benefits have been impacted by difficult fiscal times, the current legal framework governing retiree health benefits, potential avenues for addressing rising health care costs, and various proposals for reform.
The Task Force included representatives of various executive agencies, the Comptroller, the Legislature, local governments, labor and retiree groups. It was chaired by Richard Berman, who has previously served as director of the New York State Office of Health Systems Management, Director of the Division of Housing and Community Renewal, chair of the Westchester Medical Center, and President of Manhattanville College.
Governor Paterson said that the Task Force made the following recommendations:
• Encourage employer coalitions with labor participation pursuant to Article 47 of the Insurance Law.
• Permit the establishment of State administered prescription drug carve out plans for retired public employees.
• Implement a co-payment structure which encourages primary and preventative care by reducing financial barriers to managing disease.
• Provide a premium contribution to plan members who live outside of the service area of the employer's plan for other coverage of the retired employee's choosing.
• Continue to provide, where appropriate, incentives for providers and consumers to implement electronic medical records.
• No payment by retiree health plans, coupled with a prohibition of balance billing by providers, for "never events."
• Build relationships with and encourage use of health education and disease self management programs that promote healthy behaviors such as exercise, smoking cessation and other evidence based chronic disease self management programs.
• Require that insurers and plan administrators provide claims experience, consistent with statutory privacy protections, to local governments on request, thereby providing employers with greater audit authority.
• Actively pursue third party liability (e.g., coordination of benefits, subrogation).
• Encourage employers to provide information and assistance to retired public employees to enable them to fully leverage Medicare benefits such as health screenings and to make informed decisions about coverage.
• Establish a State insurance exchange including, but not limited to retired public employees with no coverage.
• Provide jurisdiction to the Insurance Department for oversight of the reserves and solvency of self-funded government plans.
• Encourage employers to allow retired employees who meet the plan's eligibility requirements to enroll in the employer's plan regardless of whether they were covered as an active employee.
• Implement more aggressive oversight of health care costs by the State and Federal governments.
• Create a standing task force which would represent in a fair and balanced manner the interests of retired public employees, their former employers, taxpayers and the public at large.
The Governor reported that the Task Force was unable to reach a consensus on the best approach to reform proposals that would limit the ability of public employers to diminish public retiree health benefits. Instead, it includes three position papers that set forth varying recommendations of particular Task Force participants.
A copy of the Final Report is available on the Internet at:
http://www.ny.gov/governor/reports/pdf/HealthCareRetiree.html
Source: Office of the Governor
On June 23, 2101 Governor David A. Paterson accepted the final report of the Task Force on Public Employee Retirement Health Care Benefits. Established by Executive Order No. 15.
The Task Force was tasked with reviewing issues such as the level and cost of benefits received by New York State public employees and retirees, the degree to which those benefits have been impacted by difficult fiscal times, the current legal framework governing retiree health benefits, potential avenues for addressing rising health care costs, and various proposals for reform.
The Task Force included representatives of various executive agencies, the Comptroller, the Legislature, local governments, labor and retiree groups. It was chaired by Richard Berman, who has previously served as director of the New York State Office of Health Systems Management, Director of the Division of Housing and Community Renewal, chair of the Westchester Medical Center, and President of Manhattanville College.
Governor Paterson said that the Task Force made the following recommendations:
• Encourage employer coalitions with labor participation pursuant to Article 47 of the Insurance Law.
• Permit the establishment of State administered prescription drug carve out plans for retired public employees.
• Implement a co-payment structure which encourages primary and preventative care by reducing financial barriers to managing disease.
• Provide a premium contribution to plan members who live outside of the service area of the employer's plan for other coverage of the retired employee's choosing.
• Continue to provide, where appropriate, incentives for providers and consumers to implement electronic medical records.
• No payment by retiree health plans, coupled with a prohibition of balance billing by providers, for "never events."
• Build relationships with and encourage use of health education and disease self management programs that promote healthy behaviors such as exercise, smoking cessation and other evidence based chronic disease self management programs.
• Require that insurers and plan administrators provide claims experience, consistent with statutory privacy protections, to local governments on request, thereby providing employers with greater audit authority.
• Actively pursue third party liability (e.g., coordination of benefits, subrogation).
• Encourage employers to provide information and assistance to retired public employees to enable them to fully leverage Medicare benefits such as health screenings and to make informed decisions about coverage.
• Establish a State insurance exchange including, but not limited to retired public employees with no coverage.
• Provide jurisdiction to the Insurance Department for oversight of the reserves and solvency of self-funded government plans.
• Encourage employers to allow retired employees who meet the plan's eligibility requirements to enroll in the employer's plan regardless of whether they were covered as an active employee.
• Implement more aggressive oversight of health care costs by the State and Federal governments.
• Create a standing task force which would represent in a fair and balanced manner the interests of retired public employees, their former employers, taxpayers and the public at large.
The Governor reported that the Task Force was unable to reach a consensus on the best approach to reform proposals that would limit the ability of public employers to diminish public retiree health benefits. Instead, it includes three position papers that set forth varying recommendations of particular Task Force participants.
A copy of the Final Report is available on the Internet at:
http://www.ny.gov/governor/reports/pdf/HealthCareRetiree.html
Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situation
Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situation
Woodward v GOER, 279 A.D.2d 725
The Governor's Office of Employee Relations [GOER] denied the out-of-title work grievance filed by a Grade 22 Senior Correction Counselor, Larry Woodward.According to the decision, Woodward, whose duties essentially involved "the social, educational and vocational rehabilitation of prisoners," was assigned to conduct Tier III disciplinary hearings involving inmates.
One of 10 civilian supervisory-level employees assigned such duties, Woodward conducted an average of 61 tier III disciplinary hearings per year between May 1, 1994 and June 1, 1999.
In September 1994 Longwood asked that either his name be removed from the list of individuals assigned to conduct Tier III hearings or that he be compensated for performing the tasks of a Hearing Officer, a grade 25 position.
When GOER denied his grievance, relying on an advisory opinion by the State Department of Civil Service's Director of Classification and Compensation indicating that "the grieved assignment [did] not constitute out-of-title work * * * [as] [t]he limited assignment of [petitioner ] to serve as a disciplinary hearing officer [was] a logical and proper extension of the duties of a Senior Correction Counselor and other civilians at this organizational level of correctional facility staffing". Accordingly, GOER denied Woodward's grievance.
Woodward's union, the Public Employees Federation, filed an Article 78 action seeking to annul GOER's denial of the out-of-title grievance and to obtain a determination that Woodward is entitled to back pay at the grade 25 level.
A State Supreme Court judge annulled GOER's determination and remitted this matter to it for a "redetermination and appropriate award of back pay." GOER appealed. The Appellate Division affirmed the lower court's determination, ruling that out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law Section 61(2).
Section 61(2) essentially provides that:
"[n]o person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder".
The court, however, pointed out that "not all additional duties constitute out-of-title work, and the mere fact that there may be some overlap between two particular positions does not mandate a finding that a petitioner is being compelled to perform out-of-title work."
The Appellate Division said that test to be used in considering complaints involving alleged out-of-title work is whether "the record as a whole provides a rational basis for the determination that the duties [the employee] performed were 'substantially similar' to those detailed in his job description and that he was not performing out-of-title work."
In this instance the court concluded that the Department of Civil Service specifications for Senior Correction Counselor, did not encompass "presiding over quasi-judicial adversarial proceedings, hearing and receiving evidence, making appropriate findings of fact and conclusions of law and imposing punishment."
In the words of the court, such duties "simply cannot be said to be reasonably related to or viewed as a logical extension of [Longwood's] duties as a Senior Correction Counselor.
Accordingly, Supreme Court appropriately concluded that respondents' determination denying Woodward's out-of-title grievance lacked a rational basis and was wholly arbitrary and capricious. Significantly, the Appellate Division noted that the Supreme Court did refer to a regulation, 7 NYCRR 253.1, which permits a facility superintendent to designate employees to conduct such disciplinary hearings.
However, said the court, "such designation is valid only to the extent that it does not violate Civil Service Law Section 61(2)." In other words, a regulation may not be relied to support a decision if it is inconsistent with the specific mandates of a statute.
Ultimately back pay was awarded to Woodward for his out-of-title work in conducting tier III hearings.
Woodward v GOER, 279 A.D.2d 725
The Governor's Office of Employee Relations [GOER] denied the out-of-title work grievance filed by a Grade 22 Senior Correction Counselor, Larry Woodward.According to the decision, Woodward, whose duties essentially involved "the social, educational and vocational rehabilitation of prisoners," was assigned to conduct Tier III disciplinary hearings involving inmates.
One of 10 civilian supervisory-level employees assigned such duties, Woodward conducted an average of 61 tier III disciplinary hearings per year between May 1, 1994 and June 1, 1999.
In September 1994 Longwood asked that either his name be removed from the list of individuals assigned to conduct Tier III hearings or that he be compensated for performing the tasks of a Hearing Officer, a grade 25 position.
When GOER denied his grievance, relying on an advisory opinion by the State Department of Civil Service's Director of Classification and Compensation indicating that "the grieved assignment [did] not constitute out-of-title work * * * [as] [t]he limited assignment of [petitioner ] to serve as a disciplinary hearing officer [was] a logical and proper extension of the duties of a Senior Correction Counselor and other civilians at this organizational level of correctional facility staffing". Accordingly, GOER denied Woodward's grievance.
Woodward's union, the Public Employees Federation, filed an Article 78 action seeking to annul GOER's denial of the out-of-title grievance and to obtain a determination that Woodward is entitled to back pay at the grade 25 level.
A State Supreme Court judge annulled GOER's determination and remitted this matter to it for a "redetermination and appropriate award of back pay." GOER appealed. The Appellate Division affirmed the lower court's determination, ruling that out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law Section 61(2).
Section 61(2) essentially provides that:
"[n]o person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder".
The court, however, pointed out that "not all additional duties constitute out-of-title work, and the mere fact that there may be some overlap between two particular positions does not mandate a finding that a petitioner is being compelled to perform out-of-title work."
The Appellate Division said that test to be used in considering complaints involving alleged out-of-title work is whether "the record as a whole provides a rational basis for the determination that the duties [the employee] performed were 'substantially similar' to those detailed in his job description and that he was not performing out-of-title work."
In this instance the court concluded that the Department of Civil Service specifications for Senior Correction Counselor, did not encompass "presiding over quasi-judicial adversarial proceedings, hearing and receiving evidence, making appropriate findings of fact and conclusions of law and imposing punishment."
In the words of the court, such duties "simply cannot be said to be reasonably related to or viewed as a logical extension of [Longwood's] duties as a Senior Correction Counselor.
Accordingly, Supreme Court appropriately concluded that respondents' determination denying Woodward's out-of-title grievance lacked a rational basis and was wholly arbitrary and capricious. Significantly, the Appellate Division noted that the Supreme Court did refer to a regulation, 7 NYCRR 253.1, which permits a facility superintendent to designate employees to conduct such disciplinary hearings.
However, said the court, "such designation is valid only to the extent that it does not violate Civil Service Law Section 61(2)." In other words, a regulation may not be relied to support a decision if it is inconsistent with the specific mandates of a statute.
Ultimately back pay was awarded to Woodward for his out-of-title work in conducting tier III hearings.
An employee placed on Section 72 leave for ordinary disability subsequently terminated for "abandonment of position"
An employee placed on Section 72 leave for ordinary disability subsequently terminated for "abandonment of position"
Fronczak v NYS Dept. of Correctional Services, CA2, LEXIS 2167
Section 72 of the Civil Service Law -- leave for ordinary disability -- permits an appointing authority to place on employee on involuntary leave without pay if he or she is found unable to perform the duties of his or her position as a result of an illness or a disability that is not an occupational injury or disease as defined in the Workers' Compensation Law.*
The Fronczak case involved the placement of a state worker on an involuntary leave pursuant to Section 72 of the Civil Service Law.
Daniel T. Fronczak sued the New York State Department of Correctional Services [DOCS], claiming that this action violated Americans with Disabilities Act, 42 USC Sections 12112-12117 and subjected him to unlawful retaliatory adverse employment actions in violation of 42 USC 1983.
According to the decision by the U.S. Circuit Court of Appeals, Fronczak was a correctional officer employed by DOCS at its Wyoming facility.
Critical of the facility's handling of hazardous waste materials, he began "exhibiting both bizarre and threatening behavior."
In 1993 DOCS asked Fronczak to undergo a psychiatric examination to determine his ability to perform the duties of his job.
Dr. Jeffrey Bernstein, employed by the New York Department of Civil Service's Employee Health Service, examined Fronczak and determined that Fronczak was:"in need of psychiatric care ... was a risk for not being able to manage the inmates, possibly even losing control, further control of his emotions and his temper, and having difficulty working with co-workers ... [t]hat he was unable from a psychiatric perspective to continue his duties as a corrections officer."
Based on this evaluation, in 1993 Fronczak was placed on an involuntary leave of absence. He unsuccessfully appealed the determination to the Civil Service Commission.
Section 72.2 provides that an employee placed on leave pursuant to Section 72.1 may, within one year after the date of commencement of such leave of absence, or thereafter at any time until his or her employment status is terminated, make application to the civil service department or municipal commission having jurisdiction over the position from which such employee is on leave, for a medical examination by a medical officer selected for that purpose by such department or commission.
In 1996, after a further evaluation, Fronczak was found fit to perform the duties of a corrections officer and, in accordance with DOCS policy, was required to undergo seven weeks of retraining prior to resuming active employment as a corrections officer.
During this training period Fronczak had "an altercation with an instructor" and ultimately "gathered his belongings, and departed" the facility.
Fronczak was sent a letter warning him that as provided under the terms of the collective bargaining agreement then in place, his absence for ten days would be considered "a constructive resignation."
When Fronczak failed to return with the ten-day period, DOCS notified him by mail that his absence had been deemed a constructive resignation and that his employment with DOCS was terminated.
After losing his administrative appeals before the State Civil Service Commission and exhausting his federal administrative remedies through the Equal Employment Opportunity Commission (EEOC), Fronczak filed a lawsuit in federal district court.
As set out in the Circuit Court's opinion:
"A liberal reading of [Fronczak's] complaint reveals the following alleged causes of action: (1) by placing Fronczak on involuntary leave in 1993 and terminating him in 1996, DOCS retaliated against Fronczak's exercise of his First Amendment rights, in violation of 42 USC Section 1983, for his complaints concerning its waste management; (2) the same 1993 involuntary leave and 1996 termination resulted from discrimination on the basis of a perceived mental disability in violation of the ADA."**
A federal magistrate judge dismissed Fronczak's petition on the grounds that he failed to establish a prima facie case that he had been discharged either as the result of discrimination on the basis of a perceived disability or in retaliation for his filing waste management complaints.
Instead, the magistrate concluded, "[t]he undisputed record reflects that ... [Fronczak] was discharged because he failed to show up for work." The Circuit Court sustained the magistrate's determination.
However, the Circuit Court went further. The court said that:
"assuming arguendo that Fronczak has presented a prima facie case of discrimination on the basis of a perceived mental disability in 1993, DOCS has come forward with a legitimate nondiscriminatory explanation for placing him on involuntary leave at that time, namely that he was not capable of performing the essential job duties of a corrections officer."
In addition, said the court, Fronczak did not present any evidence indicating that DOCS' proffered explanation was a pretext for discrimination.
The court's conclusion: After considering "all of Fronczak's claims and finding them without merit," the judgment of the district court is affirmed.
* Section 71 of the Civil Service Law provides for leaves of absences in connection with an "occupational injury or disease" within the meaning of the Workers' Compensation Law
** The US Supreme Court ruled that the states enjoy Eleventh Amendment immunity from lawsuit in federal court alleging violations of the Americans With Disabilities Act [Garrett v. University of Alabama, 193 F.3d 1214].
Fronczak v NYS Dept. of Correctional Services, CA2, LEXIS 2167
Section 72 of the Civil Service Law -- leave for ordinary disability -- permits an appointing authority to place on employee on involuntary leave without pay if he or she is found unable to perform the duties of his or her position as a result of an illness or a disability that is not an occupational injury or disease as defined in the Workers' Compensation Law.*
The Fronczak case involved the placement of a state worker on an involuntary leave pursuant to Section 72 of the Civil Service Law.
Daniel T. Fronczak sued the New York State Department of Correctional Services [DOCS], claiming that this action violated Americans with Disabilities Act, 42 USC Sections 12112-12117 and subjected him to unlawful retaliatory adverse employment actions in violation of 42 USC 1983.
According to the decision by the U.S. Circuit Court of Appeals, Fronczak was a correctional officer employed by DOCS at its Wyoming facility.
Critical of the facility's handling of hazardous waste materials, he began "exhibiting both bizarre and threatening behavior."
In 1993 DOCS asked Fronczak to undergo a psychiatric examination to determine his ability to perform the duties of his job.
Dr. Jeffrey Bernstein, employed by the New York Department of Civil Service's Employee Health Service, examined Fronczak and determined that Fronczak was:"in need of psychiatric care ... was a risk for not being able to manage the inmates, possibly even losing control, further control of his emotions and his temper, and having difficulty working with co-workers ... [t]hat he was unable from a psychiatric perspective to continue his duties as a corrections officer."
Based on this evaluation, in 1993 Fronczak was placed on an involuntary leave of absence. He unsuccessfully appealed the determination to the Civil Service Commission.
Section 72.2 provides that an employee placed on leave pursuant to Section 72.1 may, within one year after the date of commencement of such leave of absence, or thereafter at any time until his or her employment status is terminated, make application to the civil service department or municipal commission having jurisdiction over the position from which such employee is on leave, for a medical examination by a medical officer selected for that purpose by such department or commission.
In 1996, after a further evaluation, Fronczak was found fit to perform the duties of a corrections officer and, in accordance with DOCS policy, was required to undergo seven weeks of retraining prior to resuming active employment as a corrections officer.
During this training period Fronczak had "an altercation with an instructor" and ultimately "gathered his belongings, and departed" the facility.
Fronczak was sent a letter warning him that as provided under the terms of the collective bargaining agreement then in place, his absence for ten days would be considered "a constructive resignation."
When Fronczak failed to return with the ten-day period, DOCS notified him by mail that his absence had been deemed a constructive resignation and that his employment with DOCS was terminated.
After losing his administrative appeals before the State Civil Service Commission and exhausting his federal administrative remedies through the Equal Employment Opportunity Commission (EEOC), Fronczak filed a lawsuit in federal district court.
As set out in the Circuit Court's opinion:
"A liberal reading of [Fronczak's] complaint reveals the following alleged causes of action: (1) by placing Fronczak on involuntary leave in 1993 and terminating him in 1996, DOCS retaliated against Fronczak's exercise of his First Amendment rights, in violation of 42 USC Section 1983, for his complaints concerning its waste management; (2) the same 1993 involuntary leave and 1996 termination resulted from discrimination on the basis of a perceived mental disability in violation of the ADA."**
A federal magistrate judge dismissed Fronczak's petition on the grounds that he failed to establish a prima facie case that he had been discharged either as the result of discrimination on the basis of a perceived disability or in retaliation for his filing waste management complaints.
Instead, the magistrate concluded, "[t]he undisputed record reflects that ... [Fronczak] was discharged because he failed to show up for work." The Circuit Court sustained the magistrate's determination.
However, the Circuit Court went further. The court said that:
"assuming arguendo that Fronczak has presented a prima facie case of discrimination on the basis of a perceived mental disability in 1993, DOCS has come forward with a legitimate nondiscriminatory explanation for placing him on involuntary leave at that time, namely that he was not capable of performing the essential job duties of a corrections officer."
In addition, said the court, Fronczak did not present any evidence indicating that DOCS' proffered explanation was a pretext for discrimination.
The court's conclusion: After considering "all of Fronczak's claims and finding them without merit," the judgment of the district court is affirmed.
* Section 71 of the Civil Service Law provides for leaves of absences in connection with an "occupational injury or disease" within the meaning of the Workers' Compensation Law
** The US Supreme Court ruled that the states enjoy Eleventh Amendment immunity from lawsuit in federal court alleging violations of the Americans With Disabilities Act [Garrett v. University of Alabama, 193 F.3d 1214].
Employee terminated after being found guilty of off-duty misconduct
Employee terminated after being found guilty of off-duty misconduct
Losada v Safir, 278 A.D.2d 59
The Appellate Division sustained the disciplinary termination of New York City police officer Fernando Losada based on a finding that Losada, while off-duty, was in a traffic-related altercation during which he "wrongfully punched and kicked the driver of the other vehicle, causing him physical injury."
Another element: Losada was found guilty of filing a criminal complaint regarding the incident "that falsely portrayed the other driver as the aggressor, which resulted in the other driver being arrested and placed in detention."
The court said that the penalty of dismissal does not shock its sense of fairness, particularly given that this was Losada's second adjudication of violent misconduct within 16 months.
Losada v Safir, 278 A.D.2d 59
The Appellate Division sustained the disciplinary termination of New York City police officer Fernando Losada based on a finding that Losada, while off-duty, was in a traffic-related altercation during which he "wrongfully punched and kicked the driver of the other vehicle, causing him physical injury."
Another element: Losada was found guilty of filing a criminal complaint regarding the incident "that falsely portrayed the other driver as the aggressor, which resulted in the other driver being arrested and placed in detention."
The court said that the penalty of dismissal does not shock its sense of fairness, particularly given that this was Losada's second adjudication of violent misconduct within 16 months.
Employee terminated after failing to follow the employer's policy denied unemployment insurance benefits
Employee terminated after failing to follow the employer's policy denied unemployment insurance benefits
Matter of Cruz , 288 A.D.2d 813
Angel Cruz was dismissed from his position of Director of Public Safety and Security at the City University's Queens College campus. The reason for his termination: he failed to report allegations of sexual harassment made against members of his staff to the College's Sexual Harassment Panel. The College's policy required supervisors to report such incidents to the Panel.
The Unemployment Insurance Appeal Board subsequently rejected Cruz's claim for unemployment insurance benefits after finding that he was discharged for "disqualifying misconduct."
The Appellate Division affirmed the Board's ruling, holding that "[i]t is well settled that a claimant's knowing failure to comply with the employer's established policies and procedures can constitute disqualifying misconduct, especially in cases where such failure could jeopardize the employer's best interest."
According to the decision, Cruz admitted that he had twice failed to report allegations of sexual harassment that had been filed against members of his staff. His failure to do so, said the court, prevented the College from taking prompt action to address the allegations, thereby exposing it to potential liability.
Under these circumstances, the Appellate Division said that there was "no reason to disturb the decision of the Board finding that [Cruz] lost his job under disqualifying circumstances."
Matter of Cruz , 288 A.D.2d 813
Angel Cruz was dismissed from his position of Director of Public Safety and Security at the City University's Queens College campus. The reason for his termination: he failed to report allegations of sexual harassment made against members of his staff to the College's Sexual Harassment Panel. The College's policy required supervisors to report such incidents to the Panel.
The Unemployment Insurance Appeal Board subsequently rejected Cruz's claim for unemployment insurance benefits after finding that he was discharged for "disqualifying misconduct."
The Appellate Division affirmed the Board's ruling, holding that "[i]t is well settled that a claimant's knowing failure to comply with the employer's established policies and procedures can constitute disqualifying misconduct, especially in cases where such failure could jeopardize the employer's best interest."
According to the decision, Cruz admitted that he had twice failed to report allegations of sexual harassment that had been filed against members of his staff. His failure to do so, said the court, prevented the College from taking prompt action to address the allegations, thereby exposing it to potential liability.
Under these circumstances, the Appellate Division said that there was "no reason to disturb the decision of the Board finding that [Cruz] lost his job under disqualifying circumstances."
June 23, 2010
Former employee’s ADA retaliation claim survives the dismissal of her violation of the ADA complaint
Former employee’s ADA retaliation claim survives the dismissal of her violation of the ADA complaint
Ragusa v Malverne Union Free School Dist., USCA, 2nd Circuit, No. 08-5367-cv, June 21, 2010, [Unpublished]
Malverne Union Free School District mathematics teacher Biljana Ragusa sued the District, the school board and former school superintendent Mary Ellen Freeley, alleging that she had been the victim of unlawful discrimination because of her gender, age, and disability.
A federal district court judge granted the School Districts motion for summary judgment [Ragusa v. Malverne Union Free Sch. Dist., 582 F. Supp. 2d 326], finding that Ragusa failed to adduce sufficient evidence to permit a rational factfinder to conclude that she was disabled within the meaning of the ADA, that she had been subjected to a hostile work environment because of disability or that the district had retaliated against her because of her “engaging in ADA-protected activity.”
The Circuit Court sustained the district court’s ruling in part, stating that agreed with its finding that “Ragusa’s discrimination claim failed because of insufficient evidence that she is a ‘qualified individual’ with a ‘disability’ within the meaning of the ADA.”*
Ragusa had alleged that surgery to remove a benign brain tumor left her impaired in the “major life activities” of seeing, hearing, speaking, and walking.” The court, however, ruled that the evidence did not support a finding of “substantial limitation” and that the only medical evidence in the record consisted of a physician’s note clearing Ragusa to return to work following her surgery.
Further, said the court, Ragusa failed to raise a “jury question” as to whether the school district and its officers and employees “regarded her as disabled” because of an impairment that substantially limited a major life activity.
Although Ragusa contended that she received critical evaluations concerning her teaching performance, the Circuit Court decided that such criticisms reflected that the district considered her “ineffective” and not disabled.
As to Ragusa’s allegations concerning “retaliation,” the court ruled that although she presented a prima facie case of retaliation, the school district rebutted this claim by providing a non-retaliatory rationale” for her dismissal, thereby shifting the burden of going forward to Ragusa to show that the explanation offered by the district was pretextual.**
The Circuit Court concluded that Ragusa had sufficiently demonstrated the possibility of “pretext” with respect to her 2004-2005 teaching assignment and vacated the district court’s decision dismissing her claim of retaliation and remanded the matter to the federal district court for further consideration.
* The Circuit Court noted that Congress amended the ADA in 2008 to expand its coverage but said that it had decided the case on the version of the statute in effect “during the time period at issue, which ended with Ragusa’s termination on June 30, 2005, noting that, in general, a statute “shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication,” citing Bercerril v Pima County Assessor’s Office, 587 F3d 1162.
** Ragusa did not have to be disabled within the meaning of the ADA to pursue her retaliation claim as she demonstrated that she held a “good faith, reasonable belief that the underlying actions of the employer violated the ADA [see Sarno v Douglas Elliman-Gibbons and Ives, Inc., 183 F3d 155].
The decision has been posted on the Internet by the NYS Bar Association at:
http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9639670
Ragusa v Malverne Union Free School Dist., USCA, 2nd Circuit, No. 08-5367-cv, June 21, 2010, [Unpublished]
Malverne Union Free School District mathematics teacher Biljana Ragusa sued the District, the school board and former school superintendent Mary Ellen Freeley, alleging that she had been the victim of unlawful discrimination because of her gender, age, and disability.
A federal district court judge granted the School Districts motion for summary judgment [Ragusa v. Malverne Union Free Sch. Dist., 582 F. Supp. 2d 326], finding that Ragusa failed to adduce sufficient evidence to permit a rational factfinder to conclude that she was disabled within the meaning of the ADA, that she had been subjected to a hostile work environment because of disability or that the district had retaliated against her because of her “engaging in ADA-protected activity.”
The Circuit Court sustained the district court’s ruling in part, stating that agreed with its finding that “Ragusa’s discrimination claim failed because of insufficient evidence that she is a ‘qualified individual’ with a ‘disability’ within the meaning of the ADA.”*
Ragusa had alleged that surgery to remove a benign brain tumor left her impaired in the “major life activities” of seeing, hearing, speaking, and walking.” The court, however, ruled that the evidence did not support a finding of “substantial limitation” and that the only medical evidence in the record consisted of a physician’s note clearing Ragusa to return to work following her surgery.
Further, said the court, Ragusa failed to raise a “jury question” as to whether the school district and its officers and employees “regarded her as disabled” because of an impairment that substantially limited a major life activity.
Although Ragusa contended that she received critical evaluations concerning her teaching performance, the Circuit Court decided that such criticisms reflected that the district considered her “ineffective” and not disabled.
As to Ragusa’s allegations concerning “retaliation,” the court ruled that although she presented a prima facie case of retaliation, the school district rebutted this claim by providing a non-retaliatory rationale” for her dismissal, thereby shifting the burden of going forward to Ragusa to show that the explanation offered by the district was pretextual.**
The Circuit Court concluded that Ragusa had sufficiently demonstrated the possibility of “pretext” with respect to her 2004-2005 teaching assignment and vacated the district court’s decision dismissing her claim of retaliation and remanded the matter to the federal district court for further consideration.
* The Circuit Court noted that Congress amended the ADA in 2008 to expand its coverage but said that it had decided the case on the version of the statute in effect “during the time period at issue, which ended with Ragusa’s termination on June 30, 2005, noting that, in general, a statute “shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication,” citing Bercerril v Pima County Assessor’s Office, 587 F3d 1162.
** Ragusa did not have to be disabled within the meaning of the ADA to pursue her retaliation claim as she demonstrated that she held a “good faith, reasonable belief that the underlying actions of the employer violated the ADA [see Sarno v Douglas Elliman-Gibbons and Ives, Inc., 183 F3d 155].
The decision has been posted on the Internet by the NYS Bar Association at:
http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9639670
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