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.
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 21, 2010
Termination for cause may result in the loss of fringe benefits in retirement
Termination for cause may result in the loss of fringe benefits in retirement
Farrell v City of Rensselaer, NYS Supreme Court, Justice James B. Canfield, [Not selected for publication in the Official Reports]
Frequently the employer will provide health insurance and similar fringe benefits to its retirees. In some cases an employee who, upon leaving his or her employment, has "vested" his or her retirement benefits may be entitled to such fringe benefits at a later date.
Farrell decision considers an important related issue: What are the rights of a former employee to fringe benefits such as health insurance that the employer provides to individuals receiving a retirement allowance if the retired employee was terminated from employment as a result of having been found guilty of disciplinary charges?
This was the situation that faced City of Rensselaer police officer Edward W. Farrell after he was terminated from his position for misconduct: the City refused to continue his health insurance benefits following his separation.*
Farrell sued, claiming that he was entitled to such health insurance benefits because he had "retired before being terminated." He argued that the City's refusal to pay for his health insurance benefits upon his retirement was "arbitrary, capricious, unreasonable and unlawful."
The City contended that Farrell had not retired from its police department but had been terminated following disciplinary action. The City pointed out that it had rejected Farrell's "retirement note" that he had submitted an hour before disciplinary charges were served on him and that it had gone forward with the disciplinary action.
This is not an unusual situation.
An individual may decided to submit his or her resignation in anticipation of, or after being served with, disciplinary charges. For example, the New York State Civil Service Commission, which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, adopted a rule applicable to employees addressing this type of situation -- 4 NYCRR 5.3(b).
This rule provides that in the event disciplinary charges have been, or are about to be, filed against an employee, the appointing authority may elect to disregard a resignation filed by the employee and may proceed with the disciplinary action. Should the employee be found guilty, his or her separation is recorded as a dismissal rather than a resignation. Many municipal civil service commissions have adopted a similar rule.
In Farrell's case the court appears to have applied a similar rationale in dealing with a "retirement-disciplinary situation," holding that retirement, or the announcement of an intention to retire, does not bar the employer from proceeding with a disciplinary action.
Although Farrell claimed that he had retired from the police department prior to being served with disciplinary charges, Justice Canfield commented that:
Notwithstanding the New York State and Local Retirement System's use of the word "retirement" to describe the cessation of employment, there simply is no basis for concluding that Farrell "retired" from the Rensselaer Police Department.
An employee may advise his or her employer that he or she intends to retire as a matter of courtesy. To effect a retirement, however, the individual must file an application for retirement benefits with his or her retirement system. The employer does not have any authority to approve or disapprove such a retirement application submitted by the individual.**
In fact, there is no requirement that an individual who is eligible to receive a retirement benefit actually apply for such a benefit should he or she resign. He or she, if eligible, may elect to "vest" and defer his or her retirement until a later date.
Here, said the court, Rensselaer had a resolution in place providing for its continuing to pay for health insurance benefits "for those who retire from service...." The resolution, however, "does not expressly extend that benefit to those who are dismissed from service."
Justice Canfield's conclusion: Rensselaer's refusal to pay for Farrell's health insurance benefits "is consistent with the terms of the resolution."
* The decision implies that Farrell applied for, and was granted, a retirement allowance following his dismissal.
** Typically, a member of a public retirement system of this State must file his or her application for retirement at least 30 days but not more than 90 days prior to his or her effective date of retirement.
Farrell v City of Rensselaer, NYS Supreme Court, Justice James B. Canfield, [Not selected for publication in the Official Reports]
Frequently the employer will provide health insurance and similar fringe benefits to its retirees. In some cases an employee who, upon leaving his or her employment, has "vested" his or her retirement benefits may be entitled to such fringe benefits at a later date.
Farrell decision considers an important related issue: What are the rights of a former employee to fringe benefits such as health insurance that the employer provides to individuals receiving a retirement allowance if the retired employee was terminated from employment as a result of having been found guilty of disciplinary charges?
This was the situation that faced City of Rensselaer police officer Edward W. Farrell after he was terminated from his position for misconduct: the City refused to continue his health insurance benefits following his separation.*
Farrell sued, claiming that he was entitled to such health insurance benefits because he had "retired before being terminated." He argued that the City's refusal to pay for his health insurance benefits upon his retirement was "arbitrary, capricious, unreasonable and unlawful."
The City contended that Farrell had not retired from its police department but had been terminated following disciplinary action. The City pointed out that it had rejected Farrell's "retirement note" that he had submitted an hour before disciplinary charges were served on him and that it had gone forward with the disciplinary action.
This is not an unusual situation.
An individual may decided to submit his or her resignation in anticipation of, or after being served with, disciplinary charges. For example, the New York State Civil Service Commission, which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, adopted a rule applicable to employees addressing this type of situation -- 4 NYCRR 5.3(b).
This rule provides that in the event disciplinary charges have been, or are about to be, filed against an employee, the appointing authority may elect to disregard a resignation filed by the employee and may proceed with the disciplinary action. Should the employee be found guilty, his or her separation is recorded as a dismissal rather than a resignation. Many municipal civil service commissions have adopted a similar rule.
In Farrell's case the court appears to have applied a similar rationale in dealing with a "retirement-disciplinary situation," holding that retirement, or the announcement of an intention to retire, does not bar the employer from proceeding with a disciplinary action.
Although Farrell claimed that he had retired from the police department prior to being served with disciplinary charges, Justice Canfield commented that:
Notwithstanding the New York State and Local Retirement System's use of the word "retirement" to describe the cessation of employment, there simply is no basis for concluding that Farrell "retired" from the Rensselaer Police Department.
An employee may advise his or her employer that he or she intends to retire as a matter of courtesy. To effect a retirement, however, the individual must file an application for retirement benefits with his or her retirement system. The employer does not have any authority to approve or disapprove such a retirement application submitted by the individual.**
In fact, there is no requirement that an individual who is eligible to receive a retirement benefit actually apply for such a benefit should he or she resign. He or she, if eligible, may elect to "vest" and defer his or her retirement until a later date.
Here, said the court, Rensselaer had a resolution in place providing for its continuing to pay for health insurance benefits "for those who retire from service...." The resolution, however, "does not expressly extend that benefit to those who are dismissed from service."
Justice Canfield's conclusion: Rensselaer's refusal to pay for Farrell's health insurance benefits "is consistent with the terms of the resolution."
* The decision implies that Farrell applied for, and was granted, a retirement allowance following his dismissal.
** Typically, a member of a public retirement system of this State must file his or her application for retirement at least 30 days but not more than 90 days prior to his or her effective date of retirement.
Disciplinary probation
Disciplinary probation
Feliciano v Safir, Supreme Court, [Not officially reported]
Garnett v Safir, 253 A.D.2d 700, Motion for leave to appeal denied, 92 N.Y.2d 817
The Feliciano Case:
Although the specific events underlying the Feliciano case are but rarely encountered, the decision demonstrates that an employee’s “disciplinary probation status” may follow the individual to a new agency upon his or her transfer if the new employer wishes to condition the approval of the transfer on the continuation in such status.
Nelson Feliciano became a New York City police officer when the New York City Transit Authority Police Department [TAPD] was merged with the New York City Police Department [NYPD] in April 1995. Feliciano was serving a “dismissal probation” as a result of his settlement of disciplinary charges that had been filed against him by TAPD when the merger took place.
NYPD required Feliciano to sign a waiver allowing it to assume jurisdiction over the disciplinary charges as a condition of his transfer to NYPD.
NYPD dismissed Feliciano effective October 30, 1997 without holding a pre-termination hearing because of his alleged misuse of sick leave.
Feliciano had called in sick on April 30, 1997. When an officer from the NYPD’s Absence Control and Investigations Unit (“ACIU”) appeared at Feliciano’s house at about 2:00 p.m. the next day, “Feliciano was inexplicably not at home.”
Feliciano called the ACIU and represented to one of the ACIU officers that he had a valid medical pass which excused his absence from his home between the hours of 4:00 p.m. and 8:00 p.m. through May 1, 1997. Upon checking, ACIU learned that Feliciano’s medical pass expired on April 23, 1997. When confronted with this information, Feliciano apologized for his “misstatement” about the validity of his medical pass. Ultimately NYPD dismissed Feliciano.
Claiming that “[w]ithout the waiver, the disciplinary matter could have been resolved in a much more favorable manner and ... [he] would not have been on probation,” Feliciano sued. He asked the court to order his reinstatement with back salary and benefits. In addition Feliciano contended that [1] Safir acted arbitrarily and capriciously by dismissing him without benefit of a pre-termination hearing; [2] the penalty imposed was excessive; and [3] the decision to terminate him was made in bad faith.
Justice Cozier dismissed Feliciano’s petition, noting that “[u]nless there is a demonstration of bad faith or a constitutionally or statutorily impermissible purpose, the Commissioner has broad discretion to terminate probationary employees at any time, without stating a reason, and without a pre-termination hearing.”
The decision notes that Feliciano failed to comply with sick-leave regulations, an infraction which was subject to summary dismissal. As Feliciano had abused the NYPD’s sick leave regulations, which go directly to his ability to perform his job duties in a satisfactory manner, Justice Cozier concluded that because Feliciano was a probationer, a pre-termination hearing was not required and ruled Feliciano’s dismissal from his position with NYPD lawful under the circumstances.
The Garrett Case:
The facts in the Garrett case are more typical of the disciplinary probation situations.
Renee Garrett, another New York City police officer, was found guilty of various disciplinary charges and was suspended without pay for 60 days. She was also placed on a “one-year disciplinary probationary dismissal” effective January 24, 1997. On July 9, 1997, the Commissioner terminated her.
According to the decision, Garrett’s disciplinary probation was imposed after she was found guilty following allegations that [1] she was absent without permission from her assigned post; [2] she failed to perform her duties as directed; and [3] she engaged in an oral altercation and was discourteous to a superior officer.
Garrett sued, challenging the underlying disciplinary action and penalty and, in addition, contending that she was unlawfully terminated as a probationer and that she was dismissed in bad faith.*
The Appellate Division, First Department, upheld Garrett’s dismissal, commenting that “her termination within the probationary period was validly premised upon misconduct predating the commencement of the probationary period.” It noted that she had been found guilty of charges filed against her and that “the penalty of probationary dismissal does not shock our sense of fairness, particularly in light of [Garrett’s] less than exemplary service record.”
The court then said that Garrett’s probationary termination was justified by an incident during the probationary period. According to the decision, Garrett was “late in relieving another officer from her post.”
Accordingly, Garrett had no right to a pre-termination hearing under the circumstances. As to Garrett’s claim that her termination was made in “bad faith,” the Appellate Division simply noted that “there is no credible evidence to support [her] allegations.”
* Garrett had challenged both the disciplinary determination of January 24, 1997 and her probationary termination of July 9, 1997. Both actions were consolidated and considered in this appeal.
The text of the opinion is at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/disciplinary-probation.html
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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.
Feliciano v Safir, Supreme Court, [Not officially reported]
Garnett v Safir, 253 A.D.2d 700, Motion for leave to appeal denied, 92 N.Y.2d 817
The Feliciano Case:
Although the specific events underlying the Feliciano case are but rarely encountered, the decision demonstrates that an employee’s “disciplinary probation status” may follow the individual to a new agency upon his or her transfer if the new employer wishes to condition the approval of the transfer on the continuation in such status.
Nelson Feliciano became a New York City police officer when the New York City Transit Authority Police Department [TAPD] was merged with the New York City Police Department [NYPD] in April 1995. Feliciano was serving a “dismissal probation” as a result of his settlement of disciplinary charges that had been filed against him by TAPD when the merger took place.
NYPD required Feliciano to sign a waiver allowing it to assume jurisdiction over the disciplinary charges as a condition of his transfer to NYPD.
NYPD dismissed Feliciano effective October 30, 1997 without holding a pre-termination hearing because of his alleged misuse of sick leave.
Feliciano had called in sick on April 30, 1997. When an officer from the NYPD’s Absence Control and Investigations Unit (“ACIU”) appeared at Feliciano’s house at about 2:00 p.m. the next day, “Feliciano was inexplicably not at home.”
Feliciano called the ACIU and represented to one of the ACIU officers that he had a valid medical pass which excused his absence from his home between the hours of 4:00 p.m. and 8:00 p.m. through May 1, 1997. Upon checking, ACIU learned that Feliciano’s medical pass expired on April 23, 1997. When confronted with this information, Feliciano apologized for his “misstatement” about the validity of his medical pass. Ultimately NYPD dismissed Feliciano.
Claiming that “[w]ithout the waiver, the disciplinary matter could have been resolved in a much more favorable manner and ... [he] would not have been on probation,” Feliciano sued. He asked the court to order his reinstatement with back salary and benefits. In addition Feliciano contended that [1] Safir acted arbitrarily and capriciously by dismissing him without benefit of a pre-termination hearing; [2] the penalty imposed was excessive; and [3] the decision to terminate him was made in bad faith.
Justice Cozier dismissed Feliciano’s petition, noting that “[u]nless there is a demonstration of bad faith or a constitutionally or statutorily impermissible purpose, the Commissioner has broad discretion to terminate probationary employees at any time, without stating a reason, and without a pre-termination hearing.”
The decision notes that Feliciano failed to comply with sick-leave regulations, an infraction which was subject to summary dismissal. As Feliciano had abused the NYPD’s sick leave regulations, which go directly to his ability to perform his job duties in a satisfactory manner, Justice Cozier concluded that because Feliciano was a probationer, a pre-termination hearing was not required and ruled Feliciano’s dismissal from his position with NYPD lawful under the circumstances.
The Garrett Case:
The facts in the Garrett case are more typical of the disciplinary probation situations.
Renee Garrett, another New York City police officer, was found guilty of various disciplinary charges and was suspended without pay for 60 days. She was also placed on a “one-year disciplinary probationary dismissal” effective January 24, 1997. On July 9, 1997, the Commissioner terminated her.
According to the decision, Garrett’s disciplinary probation was imposed after she was found guilty following allegations that [1] she was absent without permission from her assigned post; [2] she failed to perform her duties as directed; and [3] she engaged in an oral altercation and was discourteous to a superior officer.
Garrett sued, challenging the underlying disciplinary action and penalty and, in addition, contending that she was unlawfully terminated as a probationer and that she was dismissed in bad faith.*
The Appellate Division, First Department, upheld Garrett’s dismissal, commenting that “her termination within the probationary period was validly premised upon misconduct predating the commencement of the probationary period.” It noted that she had been found guilty of charges filed against her and that “the penalty of probationary dismissal does not shock our sense of fairness, particularly in light of [Garrett’s] less than exemplary service record.”
The court then said that Garrett’s probationary termination was justified by an incident during the probationary period. According to the decision, Garrett was “late in relieving another officer from her post.”
Accordingly, Garrett had no right to a pre-termination hearing under the circumstances. As to Garrett’s claim that her termination was made in “bad faith,” the Appellate Division simply noted that “there is no credible evidence to support [her] allegations.”
* Garrett had challenged both the disciplinary determination of January 24, 1997 and her probationary termination of July 9, 1997. Both actions were consolidated and considered in this appeal.
The text of the opinion is at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/disciplinary-probation.html
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.
Review of an administrative determination by courts is limited in scope
Review of an administrative determination by courts is limited in scope
Matter of Reza v NYC Department of Parks & Recreation, 2007 NY Slip Op 30246(U), Supreme Court, New York County, Judge Charles J. Tejada [Not selected for publication in the Official Reports]
Mohammad Reza sued his employer, the NYC Department of Parks and Recreation [DPR], seeking reinstatement to his position, restoration of certain annual leave credits and other relief, including appointment to a higher-grade position.
Supreme Court Justice Tejada said the scope of a court’s review of a Department’s administrative determination is limited. In reviewing an agency’s decision, the only issue to be resolved by a court is “whether a determination was made in violation of lawful procedures, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.”
In a memorandum dated November 28, 2005, Reza’s superiors directed him to refrain from performing duties outside the scope of his job description. This memorandum, said the court, was in the nature of “a clarification of his position within DPR and, as such, subject to only limited judicial review, and will not be disturbed in the absence of a showing that [it is] wholly arbitrary or without any rational basis”.
Reza, said the court, had to demonstrate that the determination is either arbitrary, capricious or afflicted with an error of law sufficient to overcome the great deference courts will typically give to an administrative agency’s decision in order to prevail. Judge Tejada decided that he failed to meet this test.
Further, as a provisional employee of the DPR, Reza did not have any entitlement to the higher-level position of Associate Project Manager, Level III, and rather then being “fired,” was ordered to perform only the duties required of him by his job description as an Associate Engineering Technician, Level II. This was well within the Department’s authority to command said the court.
Reza also claimed “retaliation” as a result of his having written to the Commissioner complaining about his superior’s “actions against him” in violation of his First Amendment Rights.
Judge Tejada said that a public employee who seeks to prevail in his or her First Amendment claim of employment retaliation must show that: (1) his speech addressed a matter of public concern, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and that adverse employment decision, so that it can be said that the plaintiffs speech was a motivating factor in the adverse employment action.
In the opinion of the court, Reza failed to meet this burden as well and denied his petition.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30246.pdf
Matter of Reza v NYC Department of Parks & Recreation, 2007 NY Slip Op 30246(U), Supreme Court, New York County, Judge Charles J. Tejada [Not selected for publication in the Official Reports]
Mohammad Reza sued his employer, the NYC Department of Parks and Recreation [DPR], seeking reinstatement to his position, restoration of certain annual leave credits and other relief, including appointment to a higher-grade position.
Supreme Court Justice Tejada said the scope of a court’s review of a Department’s administrative determination is limited. In reviewing an agency’s decision, the only issue to be resolved by a court is “whether a determination was made in violation of lawful procedures, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.”
In a memorandum dated November 28, 2005, Reza’s superiors directed him to refrain from performing duties outside the scope of his job description. This memorandum, said the court, was in the nature of “a clarification of his position within DPR and, as such, subject to only limited judicial review, and will not be disturbed in the absence of a showing that [it is] wholly arbitrary or without any rational basis”.
Reza, said the court, had to demonstrate that the determination is either arbitrary, capricious or afflicted with an error of law sufficient to overcome the great deference courts will typically give to an administrative agency’s decision in order to prevail. Judge Tejada decided that he failed to meet this test.
Further, as a provisional employee of the DPR, Reza did not have any entitlement to the higher-level position of Associate Project Manager, Level III, and rather then being “fired,” was ordered to perform only the duties required of him by his job description as an Associate Engineering Technician, Level II. This was well within the Department’s authority to command said the court.
Reza also claimed “retaliation” as a result of his having written to the Commissioner complaining about his superior’s “actions against him” in violation of his First Amendment Rights.
Judge Tejada said that a public employee who seeks to prevail in his or her First Amendment claim of employment retaliation must show that: (1) his speech addressed a matter of public concern, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and that adverse employment decision, so that it can be said that the plaintiffs speech was a motivating factor in the adverse employment action.
In the opinion of the court, Reza failed to meet this burden as well and denied his petition.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30246.pdf
Termination of a probationer
Termination of a probationer
Miller v Village of Wappingers Falls, App. Div., 289 A.D.2d 209
In July 1998, Louis Miller, a registered Republican active in local party matters, was appointed as the zoning administrator of the Village of Wappingers Falls by the then Republican-controlled Village Board. Miller's appointment was apparently subject to his satisfactorily completing a probationary period. In April 1999, presumably while still serving as a probationer, Miller was terminated from his position by the newly elected Democratic administration. Miller sued, contending that he was improperly terminated from his employment because of his membership in the Republican Party.
The Village's motion for summary judgment was rejected by a State Supreme Court justice. In response to the Village's appeal challenging the lower court's denial of its motion, the Appellate Division, citing Negron v Jackson, 273 AD2d 241, said that probationary employee may not be fired for constitutionally impermissible reasons. Here, said the Appellate Division, Miller alleged a "constitutionally impermissible reason" for his termination -- his political affiliation.
The court rejected the Village's argument that because Miller was a probationary employee it had the right to terminate his employment for any reason or for no reason.*
The Appellate Division said that "given the nature of [Miller's] allegations, it was incumbent upon the [Village] to present admissible evidence in Supreme Court showing that [Miller's] political affiliations did not play a substantial part in the decision to terminate him."
In sustaining the lower court's dismissal of the Village's motion, the Appellate Division also noted that the Village "failed to even address these claims before the Supreme Court." This, said the court, meant that it did not carry its burden of proof and its motion was properly denied.
In its appeal the Village apparently also argued that Miller was "a policy-making employee cloaked with considerable discretion, and thus his political affiliation was a relevant consideration" insofar as his dismissal was concerned. The Appellate Division said it could not consider this argument "as [the Village] improperly seeks to interject new facts and theories for the first time on appeal."
Terminations alleged to be based on political affiliation frequently are stated in terms of a violation of the individual's rights under the federal Constitution. The general rule in such cases is that a public employee may not be removed from his or her public employment solely on the basis of his or her political affiliation unless there is proof that the individual's political affiliation was a critical element to his or her performance of the duties of the position.
Among the significant cases addressing this issue are Elrod v Burns, 427 US 347; Branti v Finkel, 445 US 507 and Rutan v Republican Party of Illinois, 497 US 62.
* Although the decision does not address Miller’s probationary obligation, "probationary employees" in fact hold permanent appointments and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.
Miller v Village of Wappingers Falls, App. Div., 289 A.D.2d 209
In July 1998, Louis Miller, a registered Republican active in local party matters, was appointed as the zoning administrator of the Village of Wappingers Falls by the then Republican-controlled Village Board. Miller's appointment was apparently subject to his satisfactorily completing a probationary period. In April 1999, presumably while still serving as a probationer, Miller was terminated from his position by the newly elected Democratic administration. Miller sued, contending that he was improperly terminated from his employment because of his membership in the Republican Party.
The Village's motion for summary judgment was rejected by a State Supreme Court justice. In response to the Village's appeal challenging the lower court's denial of its motion, the Appellate Division, citing Negron v Jackson, 273 AD2d 241, said that probationary employee may not be fired for constitutionally impermissible reasons. Here, said the Appellate Division, Miller alleged a "constitutionally impermissible reason" for his termination -- his political affiliation.
The court rejected the Village's argument that because Miller was a probationary employee it had the right to terminate his employment for any reason or for no reason.*
The Appellate Division said that "given the nature of [Miller's] allegations, it was incumbent upon the [Village] to present admissible evidence in Supreme Court showing that [Miller's] political affiliations did not play a substantial part in the decision to terminate him."
In sustaining the lower court's dismissal of the Village's motion, the Appellate Division also noted that the Village "failed to even address these claims before the Supreme Court." This, said the court, meant that it did not carry its burden of proof and its motion was properly denied.
In its appeal the Village apparently also argued that Miller was "a policy-making employee cloaked with considerable discretion, and thus his political affiliation was a relevant consideration" insofar as his dismissal was concerned. The Appellate Division said it could not consider this argument "as [the Village] improperly seeks to interject new facts and theories for the first time on appeal."
Terminations alleged to be based on political affiliation frequently are stated in terms of a violation of the individual's rights under the federal Constitution. The general rule in such cases is that a public employee may not be removed from his or her public employment solely on the basis of his or her political affiliation unless there is proof that the individual's political affiliation was a critical element to his or her performance of the duties of the position.
Among the significant cases addressing this issue are Elrod v Burns, 427 US 347; Branti v Finkel, 445 US 507 and Rutan v Republican Party of Illinois, 497 US 62.
* Although the decision does not address Miller’s probationary obligation, "probationary employees" in fact hold permanent appointments and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.
Use of a videotape as evidence in disciplinary hearing
Use of a videotape as evidence in disciplinary hearing
Paulin v City of New York, App. Div., 288 A.D.2d 153
On of the elements in the Paulin case was the use of a videotape in a disciplinary hearing.
Fred Paulin, a New York City police officer, was charged with misconduct. The Police Commissioner found Paulin guilty of having stolen merchandise from a store and imposed the penalty of dismissal.
In dismissing Paulin's appeal, the Appellate Division ruled that the Commissioner's decision was supported by substantial evidence, including a videotape of the incident.
Further, said the court, under the circumstances, imposing the penalty of dismissal "does not shock our sense of fairness."
Paulin v City of New York, App. Div., 288 A.D.2d 153
On of the elements in the Paulin case was the use of a videotape in a disciplinary hearing.
Fred Paulin, a New York City police officer, was charged with misconduct. The Police Commissioner found Paulin guilty of having stolen merchandise from a store and imposed the penalty of dismissal.
In dismissing Paulin's appeal, the Appellate Division ruled that the Commissioner's decision was supported by substantial evidence, including a videotape of the incident.
Further, said the court, under the circumstances, imposing the penalty of dismissal "does not shock our sense of fairness."
June 20, 2010
Defending and indemnifying employees
Defending and indemnifying employees
Zimmer v Town of Brookhaven, 247 A.D.2d 109
When a public employee is sued in connection with his or her performance of, or his or her failure to perform, official duties, usually he or she is entitled to look to his or her employer to provided him or her with representation in the proceeding. The Zimmer case points out one situation in which the employer may lawfully refuse to provide such assistance to an employee otherwise eligible for such legal assistance or indemnify him or her if he or she is held liable for damages.
Donald Zimmer was indicted and tried in federal district court for allegedly interfering with commerce by threats or violence, in violation of the Hobbs Act [18 USC 1951], while serving as member of the town council, Town of Brookhaven.*
Zimmer was acquitted and asked the Town to reimburse him for the legal expenses he incurred in defending himself in this federal action. When the Town rejected his claim, Zimmer sued, contending that the Town was under a “prior” or “pre-existing” legal obligation to reimburse him.
The Town initially had provided, and paid for, an attorney to defend Zimmer in the federal action. When the attorney withdrew, because of a “conflict of interest,” Zimmer employed his own attorney, whom he paid to defend him. Zimmer said that “the Town indicated to [him] that his legal fees and expenses would be ‘taken care of’.”
The Appellate Division pointed out a number of critical elements that must be resolved when “a public employee looks to the public purse to be defended, compensated, indemnified, or reimbursed in connection with legal proceedings brought against that employee....”
1. The “long-standing and frequently-invoked constitutional prohibition against the use of public moneys for private purposes (New York State Constitution, Article VIII, Section 1);”
2. In “appropriate cases and under fixed criteria, an employer, including a governmental employer, should stand behind an employee who is sued for acts performed while in the course of a duty for that employer....”
3. The public employer’s obligation to defend or indemnify an employee is limited to claims that fall clearly within the particular statutory authorization.
4. The existence of a pre-existing, legislative basis for the employee’s claim for defending or indemnifying him or her in litigation.
The basic statutory provisions protecting employees who are sued in connection with the performance of their official duties are Sections 17 and 18 of the Public Officers Law.
Section 17 established criteria for the defense and indemnification of State officers and employees against claims arising out of their public employment or duties while Section 18(2)(a) allows a municipality to adopt a local law, rule, regulation, resolution or bylaw providing for the defense and indemnification of its officers and employees who are sued as a result of their official acts or omissions.
Brookhaven had adopted a local law, Local Law 27, which provided for the “defense of the employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties.”
In its defense, the Town pointed out that while Local Law 27 provides authorization for the Town to defend and indemnify an officer or employee in civil cases, Zimmer was indicted on criminal charges.
In rebuttal, Zimmer contended that in the Security and Law Enforcement Employees case, (96 AD2d 976, affirmed 61 NY2d 965), the court allowed a public employer to compensate an employee for legal expenses in defense of criminal charges, even in the absence of a pre-existing legislative enactment.
The Appellate Division, said that Zimmer’s reliance on the Security Employees decision was misplaced because reimbursement for the expenses incurred in defending an employee in a criminal action in that case was based on a provision in a “pre-existing collective bargaining agreement, which expressly authorized it”.
In Zimmer’s situation, said the court, “there is no statute, ordinance, resolution, or anything approaching the formalities of a negotiated, pre-existing agreement of the kind” that would allow it to hold that the Town had to defend or indemnify Zimmer.
Further, the court ruled, even it were to credit Zimmer’s allegation that a town official or officials gave him assurances that the expenses would “be taken care of,” (1) no implied-in-fact contract was created under the circumstances present in Zimmer’s situation and (2) “[m]ore importantly ... no official had the authority to bind the Town or, by words or conduct, to enter into a contract to reimburse Zimmer.” Affirming the ruling by the Supreme Court, the Appellate Division dismissed Zimmer’s appeal.
Representation of an employee by a private attorney may become an issue in other situations as well.
In Foody v Rockland County, 253 A.D.2d 879, the Appellate Division, Second Department, considered whether John Foody, a Rockland County employee, was entitled to be represented by his own attorney when he and the county were named as defendants in a lawsuit.
Chapter 45 of the Laws of Rockland County provided for the defense and indemnification of municipal employees “who have been jointly sued with the County.” Foody wanted to substitute his county-selected attorney with another of his own choice and have the county pay his attorney’s “reasonable legal fees....”
One justification claimed for providing private representation in such cases is a potential, or actual, conflict of interest were the municipality’s attorney to represent both the municipality and the municipality’s employee.
The Appellate Division pointed out that Chapter 45 vests in the County Attorney the authority to decide whether a conflict of interest exists such that the employee is entitled to independent representation to be paid for out of County funds.”
But, said the court, even if the County Attorney determines that such a conflict exists, Section 45 authorizes the County Executive, not the employee, to select the employee’s private attorney. In other words, the employee does not have the right to designate his or her own attorney in such situations.
* The Hobbs Act (18 U.S.C. § 1951) prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce.
The text of the decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/defending-and-indemnifying-employees.html
Zimmer v Town of Brookhaven, 247 A.D.2d 109
When a public employee is sued in connection with his or her performance of, or his or her failure to perform, official duties, usually he or she is entitled to look to his or her employer to provided him or her with representation in the proceeding. The Zimmer case points out one situation in which the employer may lawfully refuse to provide such assistance to an employee otherwise eligible for such legal assistance or indemnify him or her if he or she is held liable for damages.
Donald Zimmer was indicted and tried in federal district court for allegedly interfering with commerce by threats or violence, in violation of the Hobbs Act [18 USC 1951], while serving as member of the town council, Town of Brookhaven.*
Zimmer was acquitted and asked the Town to reimburse him for the legal expenses he incurred in defending himself in this federal action. When the Town rejected his claim, Zimmer sued, contending that the Town was under a “prior” or “pre-existing” legal obligation to reimburse him.
The Town initially had provided, and paid for, an attorney to defend Zimmer in the federal action. When the attorney withdrew, because of a “conflict of interest,” Zimmer employed his own attorney, whom he paid to defend him. Zimmer said that “the Town indicated to [him] that his legal fees and expenses would be ‘taken care of’.”
The Appellate Division pointed out a number of critical elements that must be resolved when “a public employee looks to the public purse to be defended, compensated, indemnified, or reimbursed in connection with legal proceedings brought against that employee....”
1. The “long-standing and frequently-invoked constitutional prohibition against the use of public moneys for private purposes (New York State Constitution, Article VIII, Section 1);”
2. In “appropriate cases and under fixed criteria, an employer, including a governmental employer, should stand behind an employee who is sued for acts performed while in the course of a duty for that employer....”
3. The public employer’s obligation to defend or indemnify an employee is limited to claims that fall clearly within the particular statutory authorization.
4. The existence of a pre-existing, legislative basis for the employee’s claim for defending or indemnifying him or her in litigation.
The basic statutory provisions protecting employees who are sued in connection with the performance of their official duties are Sections 17 and 18 of the Public Officers Law.
Section 17 established criteria for the defense and indemnification of State officers and employees against claims arising out of their public employment or duties while Section 18(2)(a) allows a municipality to adopt a local law, rule, regulation, resolution or bylaw providing for the defense and indemnification of its officers and employees who are sued as a result of their official acts or omissions.
Brookhaven had adopted a local law, Local Law 27, which provided for the “defense of the employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties.”
In its defense, the Town pointed out that while Local Law 27 provides authorization for the Town to defend and indemnify an officer or employee in civil cases, Zimmer was indicted on criminal charges.
In rebuttal, Zimmer contended that in the Security and Law Enforcement Employees case, (96 AD2d 976, affirmed 61 NY2d 965), the court allowed a public employer to compensate an employee for legal expenses in defense of criminal charges, even in the absence of a pre-existing legislative enactment.
The Appellate Division, said that Zimmer’s reliance on the Security Employees decision was misplaced because reimbursement for the expenses incurred in defending an employee in a criminal action in that case was based on a provision in a “pre-existing collective bargaining agreement, which expressly authorized it”.
In Zimmer’s situation, said the court, “there is no statute, ordinance, resolution, or anything approaching the formalities of a negotiated, pre-existing agreement of the kind” that would allow it to hold that the Town had to defend or indemnify Zimmer.
Further, the court ruled, even it were to credit Zimmer’s allegation that a town official or officials gave him assurances that the expenses would “be taken care of,” (1) no implied-in-fact contract was created under the circumstances present in Zimmer’s situation and (2) “[m]ore importantly ... no official had the authority to bind the Town or, by words or conduct, to enter into a contract to reimburse Zimmer.” Affirming the ruling by the Supreme Court, the Appellate Division dismissed Zimmer’s appeal.
Representation of an employee by a private attorney may become an issue in other situations as well.
In Foody v Rockland County, 253 A.D.2d 879, the Appellate Division, Second Department, considered whether John Foody, a Rockland County employee, was entitled to be represented by his own attorney when he and the county were named as defendants in a lawsuit.
Chapter 45 of the Laws of Rockland County provided for the defense and indemnification of municipal employees “who have been jointly sued with the County.” Foody wanted to substitute his county-selected attorney with another of his own choice and have the county pay his attorney’s “reasonable legal fees....”
One justification claimed for providing private representation in such cases is a potential, or actual, conflict of interest were the municipality’s attorney to represent both the municipality and the municipality’s employee.
The Appellate Division pointed out that Chapter 45 vests in the County Attorney the authority to decide whether a conflict of interest exists such that the employee is entitled to independent representation to be paid for out of County funds.”
But, said the court, even if the County Attorney determines that such a conflict exists, Section 45 authorizes the County Executive, not the employee, to select the employee’s private attorney. In other words, the employee does not have the right to designate his or her own attorney in such situations.
* The Hobbs Act (18 U.S.C. § 1951) prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce.
The text of the decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/defending-and-indemnifying-employees.html
June 18, 2010
If a CBA sets out the rights of an individual to arbitrate an employer’s disciplinary decision, those rights may not be expanded by another article
If a CBA sets out the rights of an individual to arbitrate an employer’s disciplinary decision, those rights may not be expanded by another article
Fashion Inst. of Tech. v United Coll. Employees of Fashion Inst. of Tech., Local 3457, Am. Fedn. of Teachers, 2010 NY Slip Op 05329, 2010 NY Slip Op 05329, Appellate Division, First Department
The relevant collective bargaining agreement [CBA] between the Union and the Institute had separate and distinct Articles that were relevant in this action: one governing general "Grievances" and a second setting out a “Disciplinary Procedure."
The "Disciplinary Procedure" Article provided that "[n]o employee may be disciplined except for just cause." It further provided that a two-person disciplinary committee, consisting of one Institute representative and one Union representative would issue a recommendation as the disposition of the matter to FIT's President. Upon receiving the recommendation of the disciplinary committee the President "may take disciplinary action," which "may include, but is not limited to, reprimand . . ., suspen[sion] with or without pay, or termination."
The CAB further provided that "[i]f the President's decision is to terminate a part-time employee … the College and Union will refer the case to an outside arbitrator for final and binding determination." The Appellate Division then noted that although “the determination to terminate a part-time employee was expressly made subject to arbitration,” there was no similar provision making the President’s determination to suspend a part-time employee subject to arbitration.
When the Institute’s President suspended a “part-time employee,” Les Katz, without pay the Union filed a CBA grievance with FIT challenging the suspension and demanded the President’s decision be submitted to arbitration before the AAA. The Union alleged that the school had "[i]mproperly disciplined Les Katz in violation of the CBA." The Institute filed a petition pursuant to CPLR 7503(b) in Supreme Court seeking an order permanently staying the arbitration.
Supreme Court granted the stay and the Appellate Division sustained the lower court’s ruling that the Union’s claim was not subject to arbitration. The court explained that Katz was “cited, disciplined and suspended in accordance with the disciplinary procedures set forth” in the CBA’s Disciplinary Procedure Article, which “clearly govern in this case.” Significantly, the Disciplinary Procedure did not provide for arbitration of the President’s determination to suspend a part-time employee.
Addressing the union’s argument that the issue of whether Katz was properly suspended is subject to arbitration pursuant to the general Grievance Article, the Appellate Division said that “The reading of the contract proposed by the union, which would graft the procedures in [the ’Grievance’ provision Article] onto the disciplinary procedures in [the ‘Disciplinary Procedure’ Article] would render superfluous the provisions of [the Disciplinary Procedure Article that provided] for a limited right of arbitration for part-time employees only if they are terminated.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05329.htm
Fashion Inst. of Tech. v United Coll. Employees of Fashion Inst. of Tech., Local 3457, Am. Fedn. of Teachers, 2010 NY Slip Op 05329, 2010 NY Slip Op 05329, Appellate Division, First Department
The relevant collective bargaining agreement [CBA] between the Union and the Institute had separate and distinct Articles that were relevant in this action: one governing general "Grievances" and a second setting out a “Disciplinary Procedure."
The "Disciplinary Procedure" Article provided that "[n]o employee may be disciplined except for just cause." It further provided that a two-person disciplinary committee, consisting of one Institute representative and one Union representative would issue a recommendation as the disposition of the matter to FIT's President. Upon receiving the recommendation of the disciplinary committee the President "may take disciplinary action," which "may include, but is not limited to, reprimand . . ., suspen[sion] with or without pay, or termination."
The CAB further provided that "[i]f the President's decision is to terminate a part-time employee … the College and Union will refer the case to an outside arbitrator for final and binding determination." The Appellate Division then noted that although “the determination to terminate a part-time employee was expressly made subject to arbitration,” there was no similar provision making the President’s determination to suspend a part-time employee subject to arbitration.
When the Institute’s President suspended a “part-time employee,” Les Katz, without pay the Union filed a CBA grievance with FIT challenging the suspension and demanded the President’s decision be submitted to arbitration before the AAA. The Union alleged that the school had "[i]mproperly disciplined Les Katz in violation of the CBA." The Institute filed a petition pursuant to CPLR 7503(b) in Supreme Court seeking an order permanently staying the arbitration.
Supreme Court granted the stay and the Appellate Division sustained the lower court’s ruling that the Union’s claim was not subject to arbitration. The court explained that Katz was “cited, disciplined and suspended in accordance with the disciplinary procedures set forth” in the CBA’s Disciplinary Procedure Article, which “clearly govern in this case.” Significantly, the Disciplinary Procedure did not provide for arbitration of the President’s determination to suspend a part-time employee.
Addressing the union’s argument that the issue of whether Katz was properly suspended is subject to arbitration pursuant to the general Grievance Article, the Appellate Division said that “The reading of the contract proposed by the union, which would graft the procedures in [the ’Grievance’ provision Article] onto the disciplinary procedures in [the ‘Disciplinary Procedure’ Article] would render superfluous the provisions of [the Disciplinary Procedure Article that provided] for a limited right of arbitration for part-time employees only if they are terminated.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05329.htm
Concerning the so-called “Blue Wall of Silence”
Concerning the so-called “Blue Wall of Silence”
Diesel v Town of Lewisboro, CA2, 232 F.3d 92
While some might allege that there is a "blue wall of silence"* encouraged by certain individuals involved in law enforcement, rarely does one find a court decision that specifically addresses the concept.
Not so in the Diesel case. Here a New York State Trooper complained that his civil rights were violated when fellow Troopers failed to accord him a "blue wall of silence."
New York State Trooper Dennis Diesel, sued other members of the New York Division of State Police. Diesel claimed that he had cooperated with an internal affairs investigation involving alleged misconduct by other State Police officers. He alleged that in a subsequent, unrelated incident, -- he was found early one morning passed out or asleep behind the wheel of an official car -- he suffered retaliation as a result of his having cooperated in the internal affairs investigation by being subjected to:
1. An "excessive, prolonged and overzealous investigation" of the incident;
2. The failure of the investigating officers to extend to him a form of "professional courtesy" he terms the "blue wall of silence"; and
3. The officers involved in investigating the incident violating his rights under the First, Fourth and Fourteenth Amendments to the Constitution and New York state law.
Addressing the "blue wall of silence" issue, the Circuit Court said:
1. A selective enforcement claim under the Equal Protection Clause of the Fourteenth Amendment cannot rest on the allegation that police officers refused to close their eyes to another officer's serious misconduct in accordance with the tradition of the "blue wall of silence";
2. The investigation into Diesel's misconduct was reasonable as a matter of law both in its initiation and scope; and
3. Diesel failed to prove that he was subjected to retaliatory harassment where the alleged retaliation was a reasonable response to Diesel's own culpable conduct.
Accordingly, the court held that Diesel was not, as a matter of law, entitled to any damages and reverse that portion of the district court's judgment in favor of Diesel.
* The phrase "Blue Wall of Silence" has been popularly used to characterized the alleged unity exhibited by law enforcement personnel to limit or minimize their co-operation in an investigation where the target of the investigation is a police or other law enforcement official.
Diesel v Town of Lewisboro, CA2, 232 F.3d 92
While some might allege that there is a "blue wall of silence"* encouraged by certain individuals involved in law enforcement, rarely does one find a court decision that specifically addresses the concept.
Not so in the Diesel case. Here a New York State Trooper complained that his civil rights were violated when fellow Troopers failed to accord him a "blue wall of silence."
New York State Trooper Dennis Diesel, sued other members of the New York Division of State Police. Diesel claimed that he had cooperated with an internal affairs investigation involving alleged misconduct by other State Police officers. He alleged that in a subsequent, unrelated incident, -- he was found early one morning passed out or asleep behind the wheel of an official car -- he suffered retaliation as a result of his having cooperated in the internal affairs investigation by being subjected to:
1. An "excessive, prolonged and overzealous investigation" of the incident;
2. The failure of the investigating officers to extend to him a form of "professional courtesy" he terms the "blue wall of silence"; and
3. The officers involved in investigating the incident violating his rights under the First, Fourth and Fourteenth Amendments to the Constitution and New York state law.
Addressing the "blue wall of silence" issue, the Circuit Court said:
1. A selective enforcement claim under the Equal Protection Clause of the Fourteenth Amendment cannot rest on the allegation that police officers refused to close their eyes to another officer's serious misconduct in accordance with the tradition of the "blue wall of silence";
2. The investigation into Diesel's misconduct was reasonable as a matter of law both in its initiation and scope; and
3. Diesel failed to prove that he was subjected to retaliatory harassment where the alleged retaliation was a reasonable response to Diesel's own culpable conduct.
Accordingly, the court held that Diesel was not, as a matter of law, entitled to any damages and reverse that portion of the district court's judgment in favor of Diesel.
* The phrase "Blue Wall of Silence" has been popularly used to characterized the alleged unity exhibited by law enforcement personnel to limit or minimize their co-operation in an investigation where the target of the investigation is a police or other law enforcement official.
Determining when to apply the substantial evidence standard of review and when to apply the arbitrary and capricious standard in a disciplinary action
Determining when to apply the substantial evidence standard of review and when to apply the arbitrary and capricious standard in a disciplinary action
Pierino v Brown, 281 A.D.2d 960
The significant issue in the Pierino case concerns the proper standard to be applied in making the determination in an administrative disciplinary proceeding.
John Pierino filed an Article 78 action challenging a disciplinary determination based on a hearing officer's finding that Pierino was guilty of violating Section 35-6 of the Buffalo City Code.
The disciplinary charges filed against Pierino were resolved in accordance with the provisions set out in Article 22 -- the contract disciplinary procedure -- of the relevant collective bargaining agreement. Article 22 required the appointment of a hearing officer, who was to hear the charges and make a determination.
Pierino challenged the disciplinary determination by bring an Article 78 action alleging the decision by the hearing officer was not based on substantial evidence. As is typical in such cases, the State Supreme Court transferred the action to the Appellate Division.
The Appellate Division, however, rejected the transfer of Pierino's Article 78 petition to it for review.
What was the basis for the court's action?
The Appellate Division ruled that the issue of "substantial evidence" that formed the basis of Pierino's appeal is raised only if an administrative hearing is "required by law." In the words of the Appellate Division, citing Marin v Bensonsi, 131 AD2 100:
“Since the hearing was mandated by the collective bargaining agreement and not by Civil Service Law Section 75, the substantial evidence standard of review does not apply and the arbitrary and capricious standard is appropriate."
Consequently, said the Appellate Division, "the proceeding was erroneously transferred to this Court.”
Pierino v Brown, 281 A.D.2d 960
The significant issue in the Pierino case concerns the proper standard to be applied in making the determination in an administrative disciplinary proceeding.
John Pierino filed an Article 78 action challenging a disciplinary determination based on a hearing officer's finding that Pierino was guilty of violating Section 35-6 of the Buffalo City Code.
The disciplinary charges filed against Pierino were resolved in accordance with the provisions set out in Article 22 -- the contract disciplinary procedure -- of the relevant collective bargaining agreement. Article 22 required the appointment of a hearing officer, who was to hear the charges and make a determination.
Pierino challenged the disciplinary determination by bring an Article 78 action alleging the decision by the hearing officer was not based on substantial evidence. As is typical in such cases, the State Supreme Court transferred the action to the Appellate Division.
The Appellate Division, however, rejected the transfer of Pierino's Article 78 petition to it for review.
What was the basis for the court's action?
The Appellate Division ruled that the issue of "substantial evidence" that formed the basis of Pierino's appeal is raised only if an administrative hearing is "required by law." In the words of the Appellate Division, citing Marin v Bensonsi, 131 AD2 100:
“Since the hearing was mandated by the collective bargaining agreement and not by Civil Service Law Section 75, the substantial evidence standard of review does not apply and the arbitrary and capricious standard is appropriate."
Consequently, said the Appellate Division, "the proceeding was erroneously transferred to this Court.”
Absence during a probationary period
Absence during a probationary period
Matter of Garnes v Kelly, 2007 NY Slip Op 30262(U), Judge: Herman Cahn, [Not selected for publication in the Official Reports], Affirmed 51 A.D.3d 538
Garnes was appointed as a New York City police officer on July 1, 2003. His appointment was subject to a twenty-four month probationary period. Under normal circumstances Garnes would have completed his twenty-four month probationary period on June 30, 2005.
During his probationary period, however, Garnes was suspended for 30 days as a result of an off-duty incident and had other absences during this period. In addition, Judge Cahn noted that at the end of Garnes’ 30-day period of suspension, the NYPD placed him on modified duty.
Ultimately NYPD’s psychologist, Marisa Barra, M.A., determined that Garnes was “psychologically unsuitable to be a Police Officer and recommended that he be separated from the Department.’’ NYPD dismissed Garnes on May 4, 2006.
Garnes filed a petition pursuant to CPLR Article 78 seeking a court order annulling his termination from the NYPD, an order directing his reinstatement to his former position and an order compelling the Department to provide him with a name-clearing hearing.
The question to be resolved by the court: was Garnes’ probationary period extended as a result of his being suspended for suspended for 30 days on July 9, 2005 as a result of an off-duty incident and his other absences?
Rule 5.2.8(b) of the Personnel Rules and Regulations of the City of New York (“Personnel Rules”) provide that an employee’s probationary period is automatically extended by the number of days the employee does not perform the duties of the position. Under these Rules, a probationer is deemed not to be performing his duties when he is on annual leave, sick leave, assigned to limited duty or is suspended.
The NYPD contended that Garnes was not entitled to a pre-termination hearing because he was still on probation when he was terminated.
Judge Cahn ruled that: Because the Personnel Rules specify that an employee’s probationary period is extended by any amount of time that he is not performing his duties and are clear that a probationary employee may be terminated at any point during the extended period, at the time of his suspension, Garnes was still a probationary employee.
“Additionally,” said the court, “the extended probationary period continued beyond Garnes’ suspension, when the NYPD placed him on modified and restricted duty, pending the investigation of the off-duty incident.” Although modified duty is not listed in the Personnel Rules, Judge Chan said that the Court of Appeals has determined that it acts to extend the probationary period and the probationer does not have to be given notice of such an extension, citing Garcia v Bratton, 90 NY2d 991.*
As to Garnes’ demand for a name-clearing hearing, such a hearing is required when an employee can demonstrate that there is likelihood that false, “stigmatizing” material found in his personnel file will be disseminated by the employer, foreclosing future employment opportunities. Further, the sole purpose of such a hearing is to afford the employee an opportunity to prove that the material is false and should be expunged from his or her record -- it is not grounds for reinstatement should the individual prevail.
Judge Cahn ruled that Garnes was not entitled to a name-clearing hearing because even assuming all the facts in his Petition are true, he did not meet the standard for a name-clearing hearing set by the Court of Appeals in Swinton v Safir, 93 NY2d 758. Swinton requires that the material objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” The Appellate Division agreed.
Further, said the court, dismissing Garnes’ petition in its entirety, it must be noted that Garnes has not put forth any allegations or evidence that there is a likelihood any of this alleged stigmatizing material would be disseminated. In contrast, in Swinton, Swinton contended that the police department would disclose his personnel record to agencies with which he was seeking employment. Garnes, however, did not advance allegations that the NYPD will give his personnel file to potential employers.
* In the event an employee injured on the job is given a “light-duty assignment,” the courts have ruled that the appointing authority was not required to count the employee's “light-duty service” for probationary purposes [see Boyle v Koch, 114 AD2 78, leave to appeal denied, 68 NY2d 601]. In such situations, the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of his or her satisfactory performance of “light-duty.”
Judge Cahn's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30262.pdf
Matter of Garnes v Kelly, 2007 NY Slip Op 30262(U), Judge: Herman Cahn, [Not selected for publication in the Official Reports], Affirmed 51 A.D.3d 538
Garnes was appointed as a New York City police officer on July 1, 2003. His appointment was subject to a twenty-four month probationary period. Under normal circumstances Garnes would have completed his twenty-four month probationary period on June 30, 2005.
During his probationary period, however, Garnes was suspended for 30 days as a result of an off-duty incident and had other absences during this period. In addition, Judge Cahn noted that at the end of Garnes’ 30-day period of suspension, the NYPD placed him on modified duty.
Ultimately NYPD’s psychologist, Marisa Barra, M.A., determined that Garnes was “psychologically unsuitable to be a Police Officer and recommended that he be separated from the Department.’’ NYPD dismissed Garnes on May 4, 2006.
Garnes filed a petition pursuant to CPLR Article 78 seeking a court order annulling his termination from the NYPD, an order directing his reinstatement to his former position and an order compelling the Department to provide him with a name-clearing hearing.
The question to be resolved by the court: was Garnes’ probationary period extended as a result of his being suspended for suspended for 30 days on July 9, 2005 as a result of an off-duty incident and his other absences?
Rule 5.2.8(b) of the Personnel Rules and Regulations of the City of New York (“Personnel Rules”) provide that an employee’s probationary period is automatically extended by the number of days the employee does not perform the duties of the position. Under these Rules, a probationer is deemed not to be performing his duties when he is on annual leave, sick leave, assigned to limited duty or is suspended.
The NYPD contended that Garnes was not entitled to a pre-termination hearing because he was still on probation when he was terminated.
Judge Cahn ruled that: Because the Personnel Rules specify that an employee’s probationary period is extended by any amount of time that he is not performing his duties and are clear that a probationary employee may be terminated at any point during the extended period, at the time of his suspension, Garnes was still a probationary employee.
“Additionally,” said the court, “the extended probationary period continued beyond Garnes’ suspension, when the NYPD placed him on modified and restricted duty, pending the investigation of the off-duty incident.” Although modified duty is not listed in the Personnel Rules, Judge Chan said that the Court of Appeals has determined that it acts to extend the probationary period and the probationer does not have to be given notice of such an extension, citing Garcia v Bratton, 90 NY2d 991.*
As to Garnes’ demand for a name-clearing hearing, such a hearing is required when an employee can demonstrate that there is likelihood that false, “stigmatizing” material found in his personnel file will be disseminated by the employer, foreclosing future employment opportunities. Further, the sole purpose of such a hearing is to afford the employee an opportunity to prove that the material is false and should be expunged from his or her record -- it is not grounds for reinstatement should the individual prevail.
Judge Cahn ruled that Garnes was not entitled to a name-clearing hearing because even assuming all the facts in his Petition are true, he did not meet the standard for a name-clearing hearing set by the Court of Appeals in Swinton v Safir, 93 NY2d 758. Swinton requires that the material objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” The Appellate Division agreed.
Further, said the court, dismissing Garnes’ petition in its entirety, it must be noted that Garnes has not put forth any allegations or evidence that there is a likelihood any of this alleged stigmatizing material would be disseminated. In contrast, in Swinton, Swinton contended that the police department would disclose his personnel record to agencies with which he was seeking employment. Garnes, however, did not advance allegations that the NYPD will give his personnel file to potential employers.
* In the event an employee injured on the job is given a “light-duty assignment,” the courts have ruled that the appointing authority was not required to count the employee's “light-duty service” for probationary purposes [see Boyle v Koch, 114 AD2 78, leave to appeal denied, 68 NY2d 601]. In such situations, the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of his or her satisfactory performance of “light-duty.”
Judge Cahn's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30262.pdf
Reporting threats of violence by a disgruntled employee to the police
Reporting threats of violence by a disgruntled employee to the police
Aviles v Cornell Forge Co., CA7, 241 F.3d 589
Violence at the work site is a growing concern to both employers and employees.
The Aviles case involves an employer's fear of such violence after it learned that a disgruntled employee, Alfredo Aviles, had threatened a supervisor and was seen standing outside the building. The police were called and arrested Aviles. Aviles then sued the employer, Cornell Forge Co., for alleged unlawful discrimination based on his national origin and claimed that the Cornell had called the police in retaliation for his filing a hostile work environment claim.
These were the essential elements alleged in the Aviles case.
Aviles contended that he was the victim of unlawful discrimination because "calling the police to report that a disgruntled employee is waiting outside the workplace and may be armed is an adverse action as a matter of law."
The U.S. Circuit Court of Appeals disagreed with Aviles' theory, ruling that a truthful, nondiscriminatory report to the police should not subject an employer to Title VII liability.
According to the decision, such theory is "ill-advised." If, said the court, an employer had to face potential Title VII liability for truthfully reporting to the police that a disgruntled employee had threatened a supervisor and could be armed, it probably would discourage employers from taking the most prudent action to protect themselves and others in the workplace.
In contrast, the court said that a false report to the police could be construed as a retaliatory action meant to dissuade Aviles from pursuing his EEOC charge against the company.
The court affirmed the district court's granting a directed verdict in favor of Cornell Forge.
Aviles v Cornell Forge Co., CA7, 241 F.3d 589
Violence at the work site is a growing concern to both employers and employees.
The Aviles case involves an employer's fear of such violence after it learned that a disgruntled employee, Alfredo Aviles, had threatened a supervisor and was seen standing outside the building. The police were called and arrested Aviles. Aviles then sued the employer, Cornell Forge Co., for alleged unlawful discrimination based on his national origin and claimed that the Cornell had called the police in retaliation for his filing a hostile work environment claim.
These were the essential elements alleged in the Aviles case.
Aviles contended that he was the victim of unlawful discrimination because "calling the police to report that a disgruntled employee is waiting outside the workplace and may be armed is an adverse action as a matter of law."
The U.S. Circuit Court of Appeals disagreed with Aviles' theory, ruling that a truthful, nondiscriminatory report to the police should not subject an employer to Title VII liability.
According to the decision, such theory is "ill-advised." If, said the court, an employer had to face potential Title VII liability for truthfully reporting to the police that a disgruntled employee had threatened a supervisor and could be armed, it probably would discourage employers from taking the most prudent action to protect themselves and others in the workplace.
In contrast, the court said that a false report to the police could be construed as a retaliatory action meant to dissuade Aviles from pursuing his EEOC charge against the company.
The court affirmed the district court's granting a directed verdict in favor of Cornell Forge.
June 17, 2010
Proof of the alleged "crime" must be in the record of the disciplinary hearing to satisfy the "exception" to the §75 "18 month statute of limitation"
Proof of the alleged "crime" must be in the record of the disciplinary hearing to satisfy the "exception" to the §75 "18 month statute of limitation"
Matter of Guynup v County of Clinton, 2010 NY Slip Op 04914, decided on June 10, 2010, Appellate Division, Third Department
Terry Guynup, a lieutenant with 14 years of service with the Clinton County Sheriff's Department, was served with disciplinary charges alleging misconduct, incompetence and insubordination pursuant to Civil Service Law §75.
One of the specifications filed against Guynup alleged that he had directed threats towards the Sheriff, David Favro.
The §75 hearing officer found Guynup guilty of all but two of the specifications set out in the charges.
In addition to dismissing a charge that alleged that Guynup had made derogatory public comments about the Sheriff's Department because no evidence was presented at the hearing to support this charge, the Hearing Officer dismissed the charge concerning the threat that Guynup was alleged to have directed at Sheriff Favro because, “if made, it occurred more than 18 months before the disciplinary charges were filed and, as a result, was untimely.*
The Hearing Officer recommended that Guynup be required to participate in an employee assistance program and be suspended without pay for 30 days.
When Sheriff Favro received the Hearing Officer’s findings and recommendations, he disqualified himself from any further participation in the proceeding and designated Michael E. Zurlo, the Clinton County Administrator, to review the report, determine if its findings were supported by substantial evidence and decide what penalty, if any, should be imposed upon Guynup.
Zurlo adopted the Hearing Officer's findings that Guynup was guilty of misconduct, insubordination and incompetence, but, among other things, determined that the specification dismissed by the Hearing Officer as untimely was, in fact, timely as it constituted criminal and, therefor, the statutory time period within which the disciplinary action concerning this allegation had to be commenced did not apply.
Zurlo rejected the Hearing Officer's recommendation regarding the penalty to be imposed and, instead, directed that Guynup should be terminated from his position with the Sheriff's Department.
Guynup filed an Article 78 petition challenging [1] “the legality of Zurlo's appointment by Favro,” and [2] Zurlo’s determination that the charge alleging the threat to Favro was timely.
As to Guynup’s objection to the Sheriff designating Zurlo to review the Hearing Officer’s findings and recommendations and to make a final determination, the Appellate Division, citing Gomex v Stout, 13 NY3d 182, said that “where a civil service proceeding has been commenced and a conflict exists that implicates the appointing authority's ability to be fair and impartial, a third party with ‘supervisory authority over that particular employee’ may be designated to review a Hearing Officer's report and, upon such a review, make determinations concerning the employee's status.”
Noting that “the conflict for Favro was self-evident and required that he disqualify himself from conducting the necessary review of the findings and recommendations made by the Hearing Officer,” the Appellate Division also found that the only others having “command authority” over Guynup were disqualified because of they were both witnesses who testified at the disciplinary hearing.
The court said that “Favro not only had the authority to deputize Zurlo, the County Administrator, and make him a member of the Sheriff's Department, but also had the right to delegate to him the authority to conduct this review.”
Turning to the Hearing Officer’s ruling that the charge alleging that Guynup threatened Favro was untimely and should have been dismissed, the Appellate Division said that it agreed with the Hearing Officer’s determination that the §75(4) 18-month statute of limitations for bringing such charges controlled.
First, said the court, Civil Service Law §75(4) requires that a removal or disciplinary proceeding be commenced within 18 months after the acts that form the basis of the charges have occurred, unless the conduct in question involves the commission of a crime.
The County's theory: Guynup actions constituted committing the crimes of menacing in the third degree and reckless endangerment in the second degree, thereby rendering the 18-month time limit within which such a charge could be brought inapplicable to this proceeding. The Appellate Division disagreed and sustained the Hearing Officer's ruling.
To have committed the crime of reckless endangerment, said the court, evidence must be presented that Guynup "recklessly engage[d] in conduct which create[d] a substantial risk of serious physical injury to another person" within the meaning of Penal Law §120.20. As Guynup denied the events underlying the allegation, the Appellate Division ruled that “Absent some evidence to the contrary, and none was presented at the hearing, the crime of reckless endangerment on these facts could not have been committed.”
As a result, said the court, "even if the testimony regarding the threats and ensuing struggle are fully accepted, the crimes of reckless endangerment and menacing were not committed by Guynup and the statutory exception to the 18-month rule does not apply” and the charge alleging that he had threatened Favro must be dismissed as untimely.
Finding that Zurlo “never specified the penalty to be imposed for each charge for which he found [Guynup] guilty,” and that the principal charge filed against him — the threat to Sheriff Favro — has been dismissed, the Appellate Division remitted the matter “for a redetermination of the penalty to be imposed on those charges of which [Guynup] now stands guilty.”
* §75.4. provides that “Notwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges or, in the case of a state employee who is designated managerial or confidential under article fourteen of this chapter, more than one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, provided, however, that such limitations shall not apply where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.”
N.B. §75.4 sets different statutes of limitations for state employees designated managerial or confidential pursuant to Article 14 of the Civil Service Law than it does for other individuals. Although a number of collective bargaining agreements provide for a shorter “statutes of limitations” for filing disciplinary charges against an individual in a collective bargaining unit, it is unlikely that setting a greater statute of limitations for employees in a collective bargaining unit would survive judicial review for the reason set out by the Appellate Division in City of Plattsburgh v Local 788, 108 AD2d 1045 -- a collective bargaining agreement may not truncate or diminish a statutory right enjoyed by an employee.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04914.htm
Matter of Guynup v County of Clinton, 2010 NY Slip Op 04914, decided on June 10, 2010, Appellate Division, Third Department
Terry Guynup, a lieutenant with 14 years of service with the Clinton County Sheriff's Department, was served with disciplinary charges alleging misconduct, incompetence and insubordination pursuant to Civil Service Law §75.
One of the specifications filed against Guynup alleged that he had directed threats towards the Sheriff, David Favro.
The §75 hearing officer found Guynup guilty of all but two of the specifications set out in the charges.
In addition to dismissing a charge that alleged that Guynup had made derogatory public comments about the Sheriff's Department because no evidence was presented at the hearing to support this charge, the Hearing Officer dismissed the charge concerning the threat that Guynup was alleged to have directed at Sheriff Favro because, “if made, it occurred more than 18 months before the disciplinary charges were filed and, as a result, was untimely.*
The Hearing Officer recommended that Guynup be required to participate in an employee assistance program and be suspended without pay for 30 days.
When Sheriff Favro received the Hearing Officer’s findings and recommendations, he disqualified himself from any further participation in the proceeding and designated Michael E. Zurlo, the Clinton County Administrator, to review the report, determine if its findings were supported by substantial evidence and decide what penalty, if any, should be imposed upon Guynup.
Zurlo adopted the Hearing Officer's findings that Guynup was guilty of misconduct, insubordination and incompetence, but, among other things, determined that the specification dismissed by the Hearing Officer as untimely was, in fact, timely as it constituted criminal and, therefor, the statutory time period within which the disciplinary action concerning this allegation had to be commenced did not apply.
Zurlo rejected the Hearing Officer's recommendation regarding the penalty to be imposed and, instead, directed that Guynup should be terminated from his position with the Sheriff's Department.
Guynup filed an Article 78 petition challenging [1] “the legality of Zurlo's appointment by Favro,” and [2] Zurlo’s determination that the charge alleging the threat to Favro was timely.
As to Guynup’s objection to the Sheriff designating Zurlo to review the Hearing Officer’s findings and recommendations and to make a final determination, the Appellate Division, citing Gomex v Stout, 13 NY3d 182, said that “where a civil service proceeding has been commenced and a conflict exists that implicates the appointing authority's ability to be fair and impartial, a third party with ‘supervisory authority over that particular employee’ may be designated to review a Hearing Officer's report and, upon such a review, make determinations concerning the employee's status.”
Noting that “the conflict for Favro was self-evident and required that he disqualify himself from conducting the necessary review of the findings and recommendations made by the Hearing Officer,” the Appellate Division also found that the only others having “command authority” over Guynup were disqualified because of they were both witnesses who testified at the disciplinary hearing.
The court said that “Favro not only had the authority to deputize Zurlo, the County Administrator, and make him a member of the Sheriff's Department, but also had the right to delegate to him the authority to conduct this review.”
Turning to the Hearing Officer’s ruling that the charge alleging that Guynup threatened Favro was untimely and should have been dismissed, the Appellate Division said that it agreed with the Hearing Officer’s determination that the §75(4) 18-month statute of limitations for bringing such charges controlled.
First, said the court, Civil Service Law §75(4) requires that a removal or disciplinary proceeding be commenced within 18 months after the acts that form the basis of the charges have occurred, unless the conduct in question involves the commission of a crime.
The County's theory: Guynup actions constituted committing the crimes of menacing in the third degree and reckless endangerment in the second degree, thereby rendering the 18-month time limit within which such a charge could be brought inapplicable to this proceeding. The Appellate Division disagreed and sustained the Hearing Officer's ruling.
To have committed the crime of reckless endangerment, said the court, evidence must be presented that Guynup "recklessly engage[d] in conduct which create[d] a substantial risk of serious physical injury to another person" within the meaning of Penal Law §120.20. As Guynup denied the events underlying the allegation, the Appellate Division ruled that “Absent some evidence to the contrary, and none was presented at the hearing, the crime of reckless endangerment on these facts could not have been committed.”
As a result, said the court, "even if the testimony regarding the threats and ensuing struggle are fully accepted, the crimes of reckless endangerment and menacing were not committed by Guynup and the statutory exception to the 18-month rule does not apply” and the charge alleging that he had threatened Favro must be dismissed as untimely.
Finding that Zurlo “never specified the penalty to be imposed for each charge for which he found [Guynup] guilty,” and that the principal charge filed against him — the threat to Sheriff Favro — has been dismissed, the Appellate Division remitted the matter “for a redetermination of the penalty to be imposed on those charges of which [Guynup] now stands guilty.”
* §75.4. provides that “Notwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges or, in the case of a state employee who is designated managerial or confidential under article fourteen of this chapter, more than one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, provided, however, that such limitations shall not apply where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.”
N.B. §75.4 sets different statutes of limitations for state employees designated managerial or confidential pursuant to Article 14 of the Civil Service Law than it does for other individuals. Although a number of collective bargaining agreements provide for a shorter “statutes of limitations” for filing disciplinary charges against an individual in a collective bargaining unit, it is unlikely that setting a greater statute of limitations for employees in a collective bargaining unit would survive judicial review for the reason set out by the Appellate Division in City of Plattsburgh v Local 788, 108 AD2d 1045 -- a collective bargaining agreement may not truncate or diminish a statutory right enjoyed by an employee.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04914.htm
Using personnel records in determining an appropriate disciplinary penalty
Using personnel records in determining an appropriate disciplinary penalty
Massaria v Betschen, 290 A.D.2d 602
In the Massaria case the Appellate Division was asked to determine if was appropriate for the Section 75 hearing officer to consider a disciplinary settlement agreement entered into by an employee and his or her employer to resolve an earlier disciplinary action involving the employee when determining the penalty to be imposed on the employee after he or she was found guilty of misconduct and incompetence in a second, subsequent, disciplinary action.
New Paltz Superintendent of Schools Frederick Betschen filed Section 75 disciplinary charges Kenneth Massaria alleging that he was guilty of misconduct and incompetence based on Massaria's failing to drop a third grade student off at the proper bus stop on two occasions and an incident, captured on videotape, in which Massaria drove his bus in the middle of the road as he approached waiting students at a bus stop.
The hearing officer found Massaria guilty of all of these charges and recommended that he be dismissed from his employment. The School Board adopted the hearing officer's findings and recommendation and terminated Massaria from his position. Massaria appealed, challenging the Board's action.
The Appellate Division dismissed Massaria's appeal, ruling that the testimony and evidence presented at the hearing supplied the substantial evidence required to affirm the school district's action.
One the major issues considered by the court involved the "penalty phase" of the disciplinary hearing. At this point in the proceeding the School District introduced Massaria's prior disciplinary record for the hearing officer's to consider in determining the appropriate penalty to be imposed on Massaria.
This record consisted of a "stipulation of settlement" in lieu of disciplinary charges. In executing this stipulation, Massaria admitted to four acts of misconduct and incompetence involving improperly operating his school bus and "his departing from a mandatory meeting without supervisory permission."
Massaria conceded that the stipulation also provided that it constituted Civil Service Law Section 75 discipline, that it could be used in any future disciplinary proceeding against him, and that if he engaged in similar misconduct in the future, the District would seek to dismiss him from his position.
Addressing the hearing officer's consideration of the stipulation documenting Massaria's prior admission of misconduct and incompetence during the "penalty phase" of the disciplinary action, the Appellate Division said that here the hearing officer's consideration of Massaria's employment record met the test set out in Bigelow v Board of Trustees of the Incorporated Village of Gouverneur, 63 NY2d 470. In particular, the court found that:
1. The hearing officer considered the stipulation only after Massaria was found guilty of the charges of misconduct and incompetence filed against him;
2. Massaria "was given ample notice" that the prior stipulated incidents would be submitted to the hearing officer to consider in determining the penalty to be imposed; and
3. Massaria was given an opportunity to be heard regarding those prior incidents.
Significantly, the Appellate Division said that the "prior infractions need not have been included in the statement of charges."Ruling that Massaria's employment history, including the settlement agreement flowing from the prior disciplinary action taken against him, "was properly taken into consideration in the determination of an appropriate sanction for the proven present acts of misconduct and incompetence," the Appellate Division dismissed Massaria's appeal.
Massaria v Betschen, 290 A.D.2d 602
In the Massaria case the Appellate Division was asked to determine if was appropriate for the Section 75 hearing officer to consider a disciplinary settlement agreement entered into by an employee and his or her employer to resolve an earlier disciplinary action involving the employee when determining the penalty to be imposed on the employee after he or she was found guilty of misconduct and incompetence in a second, subsequent, disciplinary action.
New Paltz Superintendent of Schools Frederick Betschen filed Section 75 disciplinary charges Kenneth Massaria alleging that he was guilty of misconduct and incompetence based on Massaria's failing to drop a third grade student off at the proper bus stop on two occasions and an incident, captured on videotape, in which Massaria drove his bus in the middle of the road as he approached waiting students at a bus stop.
The hearing officer found Massaria guilty of all of these charges and recommended that he be dismissed from his employment. The School Board adopted the hearing officer's findings and recommendation and terminated Massaria from his position. Massaria appealed, challenging the Board's action.
The Appellate Division dismissed Massaria's appeal, ruling that the testimony and evidence presented at the hearing supplied the substantial evidence required to affirm the school district's action.
One the major issues considered by the court involved the "penalty phase" of the disciplinary hearing. At this point in the proceeding the School District introduced Massaria's prior disciplinary record for the hearing officer's to consider in determining the appropriate penalty to be imposed on Massaria.
This record consisted of a "stipulation of settlement" in lieu of disciplinary charges. In executing this stipulation, Massaria admitted to four acts of misconduct and incompetence involving improperly operating his school bus and "his departing from a mandatory meeting without supervisory permission."
Massaria conceded that the stipulation also provided that it constituted Civil Service Law Section 75 discipline, that it could be used in any future disciplinary proceeding against him, and that if he engaged in similar misconduct in the future, the District would seek to dismiss him from his position.
Addressing the hearing officer's consideration of the stipulation documenting Massaria's prior admission of misconduct and incompetence during the "penalty phase" of the disciplinary action, the Appellate Division said that here the hearing officer's consideration of Massaria's employment record met the test set out in Bigelow v Board of Trustees of the Incorporated Village of Gouverneur, 63 NY2d 470. In particular, the court found that:
1. The hearing officer considered the stipulation only after Massaria was found guilty of the charges of misconduct and incompetence filed against him;
2. Massaria "was given ample notice" that the prior stipulated incidents would be submitted to the hearing officer to consider in determining the penalty to be imposed; and
3. Massaria was given an opportunity to be heard regarding those prior incidents.
Significantly, the Appellate Division said that the "prior infractions need not have been included in the statement of charges."Ruling that Massaria's employment history, including the settlement agreement flowing from the prior disciplinary action taken against him, "was properly taken into consideration in the determination of an appropriate sanction for the proven present acts of misconduct and incompetence," the Appellate Division dismissed Massaria's appeal.
Failure to serve the proper party a fatal procedural error
Failure to serve the proper party a fatal procedural error
Appeal of Stephanie Baker from action of the Board of Education of the City School District of the City of Elmira, Decisions of the Commissioner of Education #15,696
Stephanie Baker, a probationary teacher, appealed the termination of her probationary appointment and denial of tenure by the Board of Education of the City School District of the City of Elmira.
The Commissioner dismissed her appeal without addressing its merits, noting that there was a “lack of proper service on the board.”
Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district must made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).
Baker’s affidavit of service stated only that the notice of petition and petition were served on “Valerie–Secretary of Dr. Bryant.” The Commissioner said that the “Valerie” mentioned is Valerie Costiglia, Executive Secretary to the superintendent.
As Ms. Costiglia is not the district clerk, a member of the board, or the superintendent of schools, nor has she or her position as Executive Secretary been designated by the board as authorized to accept service of process within the meaning of 8 NYCRR §275.8, the Commissioner ruled that “When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper and the appeal must be dismissed.”
The full text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/failure-to-serve-board-of-education.html
Appeal of Stephanie Baker from action of the Board of Education of the City School District of the City of Elmira, Decisions of the Commissioner of Education #15,696
Stephanie Baker, a probationary teacher, appealed the termination of her probationary appointment and denial of tenure by the Board of Education of the City School District of the City of Elmira.
The Commissioner dismissed her appeal without addressing its merits, noting that there was a “lack of proper service on the board.”
Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district must made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).
Baker’s affidavit of service stated only that the notice of petition and petition were served on “Valerie–Secretary of Dr. Bryant.” The Commissioner said that the “Valerie” mentioned is Valerie Costiglia, Executive Secretary to the superintendent.
As Ms. Costiglia is not the district clerk, a member of the board, or the superintendent of schools, nor has she or her position as Executive Secretary been designated by the board as authorized to accept service of process within the meaning of 8 NYCRR §275.8, the Commissioner ruled that “When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper and the appeal must be dismissed.”
The full text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/failure-to-serve-board-of-education.html
Litigating the Taylor Law in federal court
Litigating the Taylor Law in federal court
Schermerhorn v Metropolitan Trans. Auth. CA2, 156 F.3d 351
The Schermerhorn case demonstrates that complaints that a union has breached its duty of fair representation to the members of the negotiating unit it represents must be filed within the controlling statute of limitations because the court will never reach the merits of the complaint if it is untimely filed.
Another important issue in this case: which was the controlling law -- federal or state -- for the purposes of determining the applicable limitations period.*
Schermerhorn, a member of Local 100 of the Transport Workers Union of America (Union) sued the Union and the Metropolitan Transportation Authority and the New York City Transit Authority (Employers). He complained that the Union breached its duty of fair representation in violation of the Taylor Law.
According to the Schermerhorn, the Union, without the knowledge of its members, had made a somewhat complex “open offer” to the Employers which, if accepted, would require members of the negotiating unit to pay “additional medical costs” upon their receiving an anticipated salary increase that was tied to a proposed change in pension legislation then pending before the New York State legislature.
This would constitute a significant change in the benefit package provided to the employees in the unit. At the time the Union made its “open offer,” the Employers were paying all costs of medical benefits for unit members through contributions to a welfare benefit trust. Further, the “open offer” also included a provision requiring its terms to be incorporated into the next collective bargaining agreement negotiated by the parties.
The pension legislation was adopted and on July 26, 1994, the Employers accepted the “open offer.”
The Union and the Employers subsequently entered into new collective bargaining agreements, which were later ratified by the Union’s membership. This new Taylor Law contract included the provisions contained in the “open offer.” Contending that the members had not been informed of the terms of the “open offer,” which was described as an “undisclosed agreement,” Schermerhorn argued that the contract was a nullity because it “was never properly ratified by the membership.”
A federal district court dismissed Schermerhorn’s petition, holding that the National Labor Relations Act applied to Schermerhorn’s action. The district court then held that Schemerhorn’s petition was “time-barred” under the six-month statute of limitations applicable under Section 301 of the federal Labor-Management Relations Act.
Although Schermerhorn settled his complaint against the Union officials after his petition was dismissed, he elected to appeal the district court’s ruling insofar as it related his allegations of collusion by the Employers.
In this appeal to the U.S. Circuit Court of Appeals, however, the parties stipulated, and the Circuit Court agreed, that the claim against the Employers was governed by the Taylor Law provision relating to claims by public employees against their employer premised on their union’s breach of its duty of fair representation [Civil Service Law Section 209-a] rather than by federal law.
Applying New York State Law, the Circuit Court held that the four-month statute of limitations set out in Section 217(2)(b) of New York’s Civil Practice Law and Rules [CPLR] controlled.
According to the Circuit Court’s ruling, this four-month limitations period begins to run when (i) the plaintiff knew or should have known of the union’s breach of its duty of fair representation; or (ii) the plaintiff suffered harm from that breach, whichever is later.
The Circuit Court said that “there can be no question that plaintiffs became aware of the existence of the agreement at the very latest in early September 1995” when they learned that the Employers would begin to deduct 0.75% of their wages to offset increased medical costs resulting from the modification of the pension plan.”
Accordingly, said the Court, “more than four months prior to the commencement of their suit, [Schemer horn] knew or should have known of the Union’s alleged breach, and had suffered harm from that breach.”
Schemer horn also contended that the four-month limitations period should be tolled because an internal Union grievance was filed by one of the plaintiffs on December 29, 1995. In that grievance the member attempted to have the Union officials responsible for the “undisclosed agreement” disciplined.
The Circuit Court said that it would look to New York’s “tolling rules” to determine whether the statute of limitations was tolled by the filing of a grievance. It concluded that “[t]here is no New York statutory provision tolling the statute of limitations while an employee pursues an internal union grievance for claims against a public employer arising from a union’s breach of its duty of fair representation....”
According to the Circuit Court, New York law does not allow administrative or union grievances to toll the statute of limitations on claims against public entities in article 78 proceedings. It noted the decision in Vasbinder v. Hartnett, 129 A.D.2d 894, 895, 514 N.Y.S.2d 530, commenting that in that ruling the State’s Appellate Division noted that “invocation of a grievance procedure will not serve to toll the statutory time limit prescribed by CPLR [Section] 217” for the purposes of Article 78 proceedings.
The points of the ruling to be remembered:
1. If a party brings an action involving New York’s Taylor Law on the theory that the National Labor Relations Act is, in some way, implicated, the federal court will decide those aspects of the litigation involving the Taylor Law on the basis of New York’s law, not the federal law; and
2. The fact that a grievance concerning the underlying complaint has been filed by one of the parties will not stop the statute of limitations from continuing to run with respect to that party for the purposes of initiating litigation.
* Although the decisions here concluded that Schermerhorn’s suit was “untimely” regardless of whether federal and State law controlled, the critical aspect of the ruling was that the parties, and the U.S. Circuit Court of Appeals, ultimately agreed that New York State Law rather than the National Labor Relations Act, controlled.
Schermerhorn v Metropolitan Trans. Auth. CA2, 156 F.3d 351
The Schermerhorn case demonstrates that complaints that a union has breached its duty of fair representation to the members of the negotiating unit it represents must be filed within the controlling statute of limitations because the court will never reach the merits of the complaint if it is untimely filed.
Another important issue in this case: which was the controlling law -- federal or state -- for the purposes of determining the applicable limitations period.*
Schermerhorn, a member of Local 100 of the Transport Workers Union of America (Union) sued the Union and the Metropolitan Transportation Authority and the New York City Transit Authority (Employers). He complained that the Union breached its duty of fair representation in violation of the Taylor Law.
According to the Schermerhorn, the Union, without the knowledge of its members, had made a somewhat complex “open offer” to the Employers which, if accepted, would require members of the negotiating unit to pay “additional medical costs” upon their receiving an anticipated salary increase that was tied to a proposed change in pension legislation then pending before the New York State legislature.
This would constitute a significant change in the benefit package provided to the employees in the unit. At the time the Union made its “open offer,” the Employers were paying all costs of medical benefits for unit members through contributions to a welfare benefit trust. Further, the “open offer” also included a provision requiring its terms to be incorporated into the next collective bargaining agreement negotiated by the parties.
The pension legislation was adopted and on July 26, 1994, the Employers accepted the “open offer.”
The Union and the Employers subsequently entered into new collective bargaining agreements, which were later ratified by the Union’s membership. This new Taylor Law contract included the provisions contained in the “open offer.” Contending that the members had not been informed of the terms of the “open offer,” which was described as an “undisclosed agreement,” Schermerhorn argued that the contract was a nullity because it “was never properly ratified by the membership.”
A federal district court dismissed Schermerhorn’s petition, holding that the National Labor Relations Act applied to Schermerhorn’s action. The district court then held that Schemerhorn’s petition was “time-barred” under the six-month statute of limitations applicable under Section 301 of the federal Labor-Management Relations Act.
Although Schermerhorn settled his complaint against the Union officials after his petition was dismissed, he elected to appeal the district court’s ruling insofar as it related his allegations of collusion by the Employers.
In this appeal to the U.S. Circuit Court of Appeals, however, the parties stipulated, and the Circuit Court agreed, that the claim against the Employers was governed by the Taylor Law provision relating to claims by public employees against their employer premised on their union’s breach of its duty of fair representation [Civil Service Law Section 209-a] rather than by federal law.
Applying New York State Law, the Circuit Court held that the four-month statute of limitations set out in Section 217(2)(b) of New York’s Civil Practice Law and Rules [CPLR] controlled.
According to the Circuit Court’s ruling, this four-month limitations period begins to run when (i) the plaintiff knew or should have known of the union’s breach of its duty of fair representation; or (ii) the plaintiff suffered harm from that breach, whichever is later.
The Circuit Court said that “there can be no question that plaintiffs became aware of the existence of the agreement at the very latest in early September 1995” when they learned that the Employers would begin to deduct 0.75% of their wages to offset increased medical costs resulting from the modification of the pension plan.”
Accordingly, said the Court, “more than four months prior to the commencement of their suit, [Schemer horn] knew or should have known of the Union’s alleged breach, and had suffered harm from that breach.”
Schemer horn also contended that the four-month limitations period should be tolled because an internal Union grievance was filed by one of the plaintiffs on December 29, 1995. In that grievance the member attempted to have the Union officials responsible for the “undisclosed agreement” disciplined.
The Circuit Court said that it would look to New York’s “tolling rules” to determine whether the statute of limitations was tolled by the filing of a grievance. It concluded that “[t]here is no New York statutory provision tolling the statute of limitations while an employee pursues an internal union grievance for claims against a public employer arising from a union’s breach of its duty of fair representation....”
According to the Circuit Court, New York law does not allow administrative or union grievances to toll the statute of limitations on claims against public entities in article 78 proceedings. It noted the decision in Vasbinder v. Hartnett, 129 A.D.2d 894, 895, 514 N.Y.S.2d 530, commenting that in that ruling the State’s Appellate Division noted that “invocation of a grievance procedure will not serve to toll the statutory time limit prescribed by CPLR [Section] 217” for the purposes of Article 78 proceedings.
The points of the ruling to be remembered:
1. If a party brings an action involving New York’s Taylor Law on the theory that the National Labor Relations Act is, in some way, implicated, the federal court will decide those aspects of the litigation involving the Taylor Law on the basis of New York’s law, not the federal law; and
2. The fact that a grievance concerning the underlying complaint has been filed by one of the parties will not stop the statute of limitations from continuing to run with respect to that party for the purposes of initiating litigation.
* Although the decisions here concluded that Schermerhorn’s suit was “untimely” regardless of whether federal and State law controlled, the critical aspect of the ruling was that the parties, and the U.S. Circuit Court of Appeals, ultimately agreed that New York State Law rather than the National Labor Relations Act, controlled.
June 16, 2010
Employee disciplined for driving department vehicle “with a passenger, after hours and off-route"
Employee disciplined for driving department vehicle “with a passenger, after hours and off-route"
New York City Department of Environmental Protection v Johnson, OATH Index #1330/10
OATH Administrative Law Judge Kevin Casey found that a “311 complaint” telephoned by a citizen, Mike Cristino, corroborated by the Department’s chief inspector's investigation, was sufficiently reliable to prove that a Department water use inspector drove a department truck, with a passenger, after hours and off-route.
Mr. Cristino had telephoned 311* and reported that while crossing a street in Brooklyn after 5 p.m., he was almost hit by a truck driven by a DEP worker. The complainant provided the license plate number and noted that the passenger in the vehicle had “given him the finger.”
The license plate number provided by Mr. Cristino matched the one on the truck assigned to Nicholas Johnson, an Environmental Protection water use inspector.
The record indicated that Johnson’s route was in the Bronx, and his shift ended at 4:30 p.m.
The Department’s inspector testified Johnson had logged 56 miles that day although his route was 18 miles. Johnson attempted to explain the discrepancy by suggesting he drove extra miles to keep his truck cabin cool, to avoid extra idling and check fire hydrants or that he made an erroneous log entry.
ALJ Casey rejected Johnson’s explanations as unlikely and recommended be suspended without pay for 12 days.
* Individuals in New York City only need dial 311 - the 311 Citizens Service Center - for all non-emergency related Government services calls. For additional information about NYC's 311 service go to: http://www.nyc.com/government/311_citizens_service_center.76037/editorial_review.aspx
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1330.pdf
New York City Department of Environmental Protection v Johnson, OATH Index #1330/10
OATH Administrative Law Judge Kevin Casey found that a “311 complaint” telephoned by a citizen, Mike Cristino, corroborated by the Department’s chief inspector's investigation, was sufficiently reliable to prove that a Department water use inspector drove a department truck, with a passenger, after hours and off-route.
Mr. Cristino had telephoned 311* and reported that while crossing a street in Brooklyn after 5 p.m., he was almost hit by a truck driven by a DEP worker. The complainant provided the license plate number and noted that the passenger in the vehicle had “given him the finger.”
The license plate number provided by Mr. Cristino matched the one on the truck assigned to Nicholas Johnson, an Environmental Protection water use inspector.
The record indicated that Johnson’s route was in the Bronx, and his shift ended at 4:30 p.m.
The Department’s inspector testified Johnson had logged 56 miles that day although his route was 18 miles. Johnson attempted to explain the discrepancy by suggesting he drove extra miles to keep his truck cabin cool, to avoid extra idling and check fire hydrants or that he made an erroneous log entry.
ALJ Casey rejected Johnson’s explanations as unlikely and recommended be suspended without pay for 12 days.
* Individuals in New York City only need dial 311 - the 311 Citizens Service Center - for all non-emergency related Government services calls. For additional information about NYC's 311 service go to: http://www.nyc.com/government/311_citizens_service_center.76037/editorial_review.aspx
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1330.pdf
Tenure by estoppel
Tenure by estoppel
Wamsley v East Ramapo Central School District, 281 A.D.2d 633
If a school board neglects to take timely action to discontinue the services of a probationary teacher or administrator, the individual will attain what is termed "tenure by estoppel." The Court of Appeals addressed the issue of an individual obtaining "tenure by estoppel" in the Sewanhaka case [Gould v Sewanhaka Central High School District, 81 NY2d 446].
However, "tenure by estoppel" is not limited to individuals in the unclassified service such as teachers and school administrators -- employees in the classified service also may attain tenure by estoppel as the Wamsley decision demonstrates.
On October 5, 1998, East Ramapo appointed George Wamsley to the position of school bus driver, a classified service position in the noncompetitive class. Wamsley's appointment was subject to his satisfactorily completing a 26-week probationary period.*
On August 18, 1999 the school district's personnel officer wrote to Wamsley advising him that he was to be dismissed because his service during his probationary period had been deemed unsatisfactory by his supervisors. Wamsley was terminated from his position effective August 25, 1999.
Wamsley sued, contending that his probationary term had expired before he was discharged and thus he held a tenured appointment. He also claimed that he was entitled to a "pretermination hearing" because he was an "exempt volunteer firefighter."
The Appellate Division agreed with Wamsley's argument that he was no longer a probationary employee at the time he was discharged.
In the words of the court, Wamsley's "probationary term began on October 5, 1998, and ended 26 weeks later ... as permissibly extended by his days of absence."**
Accordingly, Wamsley's 26-week period, not having otherwise been extended as permitted by the rules of the Rockland Civil Service Commission, "expired long before his employment was terminated."
However, there were other elements to consider concerning Wamsley's claim of a right to a pretermination hearing.
The due process procedures set out in Section 75 of the Civil Service Law are not available to a noncompetitive class employee who has less than five years of continuous service*** unless the individual is a veteran who served in time of war or is an "exempt volunteer firefighter."
According to the Appellate Division, Wamsley claimed, but never established, that he was entitled to the protections of Section 75**** because he was an exempt volunteer firefighter.
The Appellate Division concluded that although clearly Wamsley was not a probationer at the time of is dismissal, he raised a triable issue of fact with respect to his claim of Section 75 rights based on his status as an exempt volunteer firefighter.
According, a hearing on this aspect of this complaint was required and the matter was returned to State Supreme Court "for resolution of that factual issue."
Two technical elements concerning exempt volunteer firefighter status should be noted:
1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [People v Hayes, 135 AD 19]; and
2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [Badman v Falk, 4 AD2d 149].
* Although decision states that Wamsley "became permanent" after the expiration of his 26-week probationary term, "probationary employees" in fact hold permanent appointments and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.
** The Appellate Division said that as Wamsley "was absent, at most, 5 1/2 days during the 26-week period," his maximum period of probationary had ended expired long before his employment was terminated.
*** Section 75(c), in pertinent part, provides that an employee holding a position in the non-competitive class ... who since his last entry into service has completed at least five years of continuous service in the non-competitive class ....
**** Section 75(b), in pertinent part, extends the Section 75 rights available to tenured employees in the competitive class to a permanent employee in the classified service who is an exempt volunteer firefighter as defined in the general municipal law, except when a person described in this paragraph holds the position of private secretary, cashier or deputy of any official or department.
Wamsley v East Ramapo Central School District, 281 A.D.2d 633
If a school board neglects to take timely action to discontinue the services of a probationary teacher or administrator, the individual will attain what is termed "tenure by estoppel." The Court of Appeals addressed the issue of an individual obtaining "tenure by estoppel" in the Sewanhaka case [Gould v Sewanhaka Central High School District, 81 NY2d 446].
However, "tenure by estoppel" is not limited to individuals in the unclassified service such as teachers and school administrators -- employees in the classified service also may attain tenure by estoppel as the Wamsley decision demonstrates.
On October 5, 1998, East Ramapo appointed George Wamsley to the position of school bus driver, a classified service position in the noncompetitive class. Wamsley's appointment was subject to his satisfactorily completing a 26-week probationary period.*
On August 18, 1999 the school district's personnel officer wrote to Wamsley advising him that he was to be dismissed because his service during his probationary period had been deemed unsatisfactory by his supervisors. Wamsley was terminated from his position effective August 25, 1999.
Wamsley sued, contending that his probationary term had expired before he was discharged and thus he held a tenured appointment. He also claimed that he was entitled to a "pretermination hearing" because he was an "exempt volunteer firefighter."
The Appellate Division agreed with Wamsley's argument that he was no longer a probationary employee at the time he was discharged.
In the words of the court, Wamsley's "probationary term began on October 5, 1998, and ended 26 weeks later ... as permissibly extended by his days of absence."**
Accordingly, Wamsley's 26-week period, not having otherwise been extended as permitted by the rules of the Rockland Civil Service Commission, "expired long before his employment was terminated."
However, there were other elements to consider concerning Wamsley's claim of a right to a pretermination hearing.
The due process procedures set out in Section 75 of the Civil Service Law are not available to a noncompetitive class employee who has less than five years of continuous service*** unless the individual is a veteran who served in time of war or is an "exempt volunteer firefighter."
According to the Appellate Division, Wamsley claimed, but never established, that he was entitled to the protections of Section 75**** because he was an exempt volunteer firefighter.
The Appellate Division concluded that although clearly Wamsley was not a probationer at the time of is dismissal, he raised a triable issue of fact with respect to his claim of Section 75 rights based on his status as an exempt volunteer firefighter.
According, a hearing on this aspect of this complaint was required and the matter was returned to State Supreme Court "for resolution of that factual issue."
Two technical elements concerning exempt volunteer firefighter status should be noted:
1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [People v Hayes, 135 AD 19]; and
2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [Badman v Falk, 4 AD2d 149].
* Although decision states that Wamsley "became permanent" after the expiration of his 26-week probationary term, "probationary employees" in fact hold permanent appointments and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.
** The Appellate Division said that as Wamsley "was absent, at most, 5 1/2 days during the 26-week period," his maximum period of probationary had ended expired long before his employment was terminated.
*** Section 75(c), in pertinent part, provides that an employee holding a position in the non-competitive class ... who since his last entry into service has completed at least five years of continuous service in the non-competitive class ....
**** Section 75(b), in pertinent part, extends the Section 75 rights available to tenured employees in the competitive class to a permanent employee in the classified service who is an exempt volunteer firefighter as defined in the general municipal law, except when a person described in this paragraph holds the position of private secretary, cashier or deputy of any official or department.
Termination of a probationer
Termination of a probationer
Johnson v City of New York, 281 A.D.2d 322
Elaine Johnson, a probationary employee, challenged her termination from her position as a Caseworker with the New York City Administration for Children's Services [ACS].
According to the decision, Johnson suffered a job-related injury while she was serving as a provisional Caseworker.
ACS permanently appointed Johnson to the position of Caseworker while she was on leave. Her permanent appointment was subject to her satisfactory completion of a one-year probationary period. Still on leave, Johnson was terminated from her position before completing her probationary period.
The Appellate Division upheld Johnson's termination, rejecting her allegation that she was terminated in retaliation for a complaint she had made while a provisional employee concerning her supervisors' communication skills.
The court said that there was "ample evidence of [Johnson's] unacceptable work performance as a provisional that her supervisors began to document before she made her complaint about them."
However, there are some troublesome aspects to this case.
According to the ruling, Johnson never actually performed any services as a Caseworker while a probationer -- she was absent on an authorized leave prior to and following her permanent appointment. ACS, said the court, relied on her "performance as a provisional in making its decision to terminate her permanent appointment.
Typically, a probationary period is extended if the individual is absent during his or her probationary period.
As to actually being evaluated on his or her performance while a probationer in contrast to his or her performance while serving in some other capacity -- i.e., as a temporary or provisional employee -- in Matter of DeCecca, 25 Misc2d 425, the court ruled that a probationary employee may not be dismissed until he or she has been given an opportunity to demonstrate his or her capacity to satisfactorily perform the duties of the position.
Finally, in York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows:
After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or made in bad faith.
The York decision is viewed as authority for requiring that a probationary employee be given administrative due process in the form of providing the employee with "notice and hearing" if the appointing authority decides to terminate the individual during his or her minimum period of probation.
Johnson v City of New York, 281 A.D.2d 322
Elaine Johnson, a probationary employee, challenged her termination from her position as a Caseworker with the New York City Administration for Children's Services [ACS].
According to the decision, Johnson suffered a job-related injury while she was serving as a provisional Caseworker.
ACS permanently appointed Johnson to the position of Caseworker while she was on leave. Her permanent appointment was subject to her satisfactory completion of a one-year probationary period. Still on leave, Johnson was terminated from her position before completing her probationary period.
The Appellate Division upheld Johnson's termination, rejecting her allegation that she was terminated in retaliation for a complaint she had made while a provisional employee concerning her supervisors' communication skills.
The court said that there was "ample evidence of [Johnson's] unacceptable work performance as a provisional that her supervisors began to document before she made her complaint about them."
However, there are some troublesome aspects to this case.
According to the ruling, Johnson never actually performed any services as a Caseworker while a probationer -- she was absent on an authorized leave prior to and following her permanent appointment. ACS, said the court, relied on her "performance as a provisional in making its decision to terminate her permanent appointment.
Typically, a probationary period is extended if the individual is absent during his or her probationary period.
As to actually being evaluated on his or her performance while a probationer in contrast to his or her performance while serving in some other capacity -- i.e., as a temporary or provisional employee -- in Matter of DeCecca, 25 Misc2d 425, the court ruled that a probationary employee may not be dismissed until he or she has been given an opportunity to demonstrate his or her capacity to satisfactorily perform the duties of the position.
Finally, in York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows:
After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or made in bad faith.
The York decision is viewed as authority for requiring that a probationary employee be given administrative due process in the form of providing the employee with "notice and hearing" if the appointing authority decides to terminate the individual during his or her minimum period of probation.
Second Circuit rules failure to investigate discrimination complaint not adverse employment action
Second Circuit rules failure to investigate discrimination complaint not adverse employment action
Source: Jackson Lewis LLP. Reproduced with permission. Copyright © 2010, Jackson Lewis. Originally published by Jackson Lewis, LLP, at www.jacksonlewis.com. All rights reserved.
Affirming summary judgment for the employer in a race discrimination and retaliation action, the federal appeals court in New York has held that the employer’s failure to investigate a complaint of alleged employment discrimination is not an adverse employment action taken in retaliation for the filing of the same discrimination complaint. Fincher v. Depository Trust & Clearing Corp., No. 08-5013-cv (2d Cir. May 14, 2010). The Second Circuit has jurisdiction over Connecticut, New York, and Vermont.
The Facts
Cynthia Fincher worked for Depository Trust and Clearing Corporation (“DTCC”) as a Senior Auditor from 2004 until she resigned her employment on June 5, 2006. During that time, Fincher received several critical performance appraisals. In late March 2006, Fincher complained to Charles Smith, the Senior Director of Employee Relations at DTCC, that “black people were set up to fail at [the Auditing] department because they were not provided and given the same training opportunities as the white employees.” Fincher maintained that she asked Smith whether he planned to respond to her complaint, and Smith told her that he would not. In May 2006, Fincher claimed that her manager, Mark Hudson (“Hudson”), admitted to her that she did not receive proper training and that she was “discriminated against.” Fincher subsequently resigned, saying her resignation was due to racial discrimination, including inadequate training.
The Lawsuit
Fincher sued DTCC for, among other things, race discrimination, retaliation, harassment, and constructive discharge under the federal equal rights law (42 U.S.C. § 1981). DTCC moved for and the district court granted summary judgment on all claims. Fincher appealed and argued that: (1) DTCC’s failure to investigate her discrimination complaint constituted retaliation; (2) the failure to investigate her complaint created a hostile work environment; (3) she was constructively discharged based on the alleged hostile environment; and (4) the district court erred in failing to consider her testimony about Hudson’s alleged comment.
Appeals Court Decision
Addressing the retaliation claim, the Court noted that to establish a prima facie case of retaliation under Section 1981, a plaintiff must show that: she engaged in protected activity; the employer was aware of this activity; the employer took adverse action against the plaintiff; and a retaliatory motive played a part in the adverse employment action.
An adverse action is one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
The Court found that Fincher failed to establish a prima facie case of retaliation because the failure to investigate her alleged complaint was not an adverse action. It noted that “[a]n employee whose complaint is not investigated cannot be said to have thereby suffered a punishment for bringing that same complaint” because the employee is no worse off than she would have been had she not complained or if the employer investigated the complaint and denied it. Accordingly, the Court affirmed summary judgment on Fincher’s retaliation claim.
Turning to the hostile work environment and constructive discharge claims, the Court stated that, to establish a hostile work environment, Fincher “must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered.” Rejecting Fincher’s argument that DTCC’s failure to investigate her alleged complaint created a hostile environment, the Court observed that “the failure to investigate did not by itself alter the terms and conditions of Fincher’s employment; rather, it preserved the very circumstances that were the subject of the complaint” and therefore could not have contributed to a hostile environment. Where “an alleged constructive discharge stems from an alleged hostile work environment,” the Court explained, “a plaintiff must show working conditions so intolerable that a reasonable person would have felt compelled to resign.” Because Fincher failed to establish a hostile work environment, her constructive discharge claim also failed.
Finally, Fincher argued that the district court did not give sufficient consideration to her testimony about Hudson’s alleged admission to her that she was the victim of racial discrimination. The Court noted that district court appeared to discredit her testimony regarding Hudson’s alleged statement even though district courts may not discredit a witness’s testimony on a motion for summary judgment because juries make credibility assessments. Nevertheless, the Court affirmed summary judgment on Fincher’s discrimination claim because the comment, even if true, did not provide an adequate basis to deny summary judgment. Rather, the alleged remarks were a mere “scintilla” of evidence in light of their “offhand, conclusory nature.” It further noted that the alleged remarks were a “purported concession that Fincher was discriminated against; they were not themselves discriminatory.” Accordingly, the Court affirmed summary judgment on this claim, as well.
* *
Jackson Lewis, LLP, comments: This case is a significant win for employers by confirming the failure to investigate an alleged complaint of discrimination is not, in itself, an adverse employment action and cannot serve as the basis for a retaliation claim. Further, the failure to investigate alone is insufficient to create a hostile work environment. The case also highlights a party’s evidentiary burden when attempting to defeat summary judgment, i.e., a “scintilla” of evidence is insufficient. This is highly fact-specific inquiry, however.
The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/f4c71679-3bf6-43bd-9fcb-b89b9e59afc9/1/doc/08-5013-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f4c71679-3bf6-43bd-9fcb-b89b9e59afc9/1/hilite/
Source: Jackson Lewis LLP. Reproduced with permission. Copyright © 2010, Jackson Lewis. Originally published by Jackson Lewis, LLP, at www.jacksonlewis.com. All rights reserved.
Affirming summary judgment for the employer in a race discrimination and retaliation action, the federal appeals court in New York has held that the employer’s failure to investigate a complaint of alleged employment discrimination is not an adverse employment action taken in retaliation for the filing of the same discrimination complaint. Fincher v. Depository Trust & Clearing Corp., No. 08-5013-cv (2d Cir. May 14, 2010). The Second Circuit has jurisdiction over Connecticut, New York, and Vermont.
The Facts
Cynthia Fincher worked for Depository Trust and Clearing Corporation (“DTCC”) as a Senior Auditor from 2004 until she resigned her employment on June 5, 2006. During that time, Fincher received several critical performance appraisals. In late March 2006, Fincher complained to Charles Smith, the Senior Director of Employee Relations at DTCC, that “black people were set up to fail at [the Auditing] department because they were not provided and given the same training opportunities as the white employees.” Fincher maintained that she asked Smith whether he planned to respond to her complaint, and Smith told her that he would not. In May 2006, Fincher claimed that her manager, Mark Hudson (“Hudson”), admitted to her that she did not receive proper training and that she was “discriminated against.” Fincher subsequently resigned, saying her resignation was due to racial discrimination, including inadequate training.
The Lawsuit
Fincher sued DTCC for, among other things, race discrimination, retaliation, harassment, and constructive discharge under the federal equal rights law (42 U.S.C. § 1981). DTCC moved for and the district court granted summary judgment on all claims. Fincher appealed and argued that: (1) DTCC’s failure to investigate her discrimination complaint constituted retaliation; (2) the failure to investigate her complaint created a hostile work environment; (3) she was constructively discharged based on the alleged hostile environment; and (4) the district court erred in failing to consider her testimony about Hudson’s alleged comment.
Appeals Court Decision
Addressing the retaliation claim, the Court noted that to establish a prima facie case of retaliation under Section 1981, a plaintiff must show that: she engaged in protected activity; the employer was aware of this activity; the employer took adverse action against the plaintiff; and a retaliatory motive played a part in the adverse employment action.
An adverse action is one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
The Court found that Fincher failed to establish a prima facie case of retaliation because the failure to investigate her alleged complaint was not an adverse action. It noted that “[a]n employee whose complaint is not investigated cannot be said to have thereby suffered a punishment for bringing that same complaint” because the employee is no worse off than she would have been had she not complained or if the employer investigated the complaint and denied it. Accordingly, the Court affirmed summary judgment on Fincher’s retaliation claim.
Turning to the hostile work environment and constructive discharge claims, the Court stated that, to establish a hostile work environment, Fincher “must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered.” Rejecting Fincher’s argument that DTCC’s failure to investigate her alleged complaint created a hostile environment, the Court observed that “the failure to investigate did not by itself alter the terms and conditions of Fincher’s employment; rather, it preserved the very circumstances that were the subject of the complaint” and therefore could not have contributed to a hostile environment. Where “an alleged constructive discharge stems from an alleged hostile work environment,” the Court explained, “a plaintiff must show working conditions so intolerable that a reasonable person would have felt compelled to resign.” Because Fincher failed to establish a hostile work environment, her constructive discharge claim also failed.
Finally, Fincher argued that the district court did not give sufficient consideration to her testimony about Hudson’s alleged admission to her that she was the victim of racial discrimination. The Court noted that district court appeared to discredit her testimony regarding Hudson’s alleged statement even though district courts may not discredit a witness’s testimony on a motion for summary judgment because juries make credibility assessments. Nevertheless, the Court affirmed summary judgment on Fincher’s discrimination claim because the comment, even if true, did not provide an adequate basis to deny summary judgment. Rather, the alleged remarks were a mere “scintilla” of evidence in light of their “offhand, conclusory nature.” It further noted that the alleged remarks were a “purported concession that Fincher was discriminated against; they were not themselves discriminatory.” Accordingly, the Court affirmed summary judgment on this claim, as well.
* *
Jackson Lewis, LLP, comments: This case is a significant win for employers by confirming the failure to investigate an alleged complaint of discrimination is not, in itself, an adverse employment action and cannot serve as the basis for a retaliation claim. Further, the failure to investigate alone is insufficient to create a hostile work environment. The case also highlights a party’s evidentiary burden when attempting to defeat summary judgment, i.e., a “scintilla” of evidence is insufficient. This is highly fact-specific inquiry, however.
The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/f4c71679-3bf6-43bd-9fcb-b89b9e59afc9/1/doc/08-5013-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f4c71679-3bf6-43bd-9fcb-b89b9e59afc9/1/hilite/
June 15, 2010
Withholding payment for accrued leave credits upon separation ruled permitted under the faithless servant doctrine
Withholding payment for accrued leave credits upon separation ruled permitted under the faithless servant doctrine
Bolin v Nassau County Bd. of Coop. Educ. Servs., 2010 NY Slip Op 31420(U), May 27, 2010, Supreme Court, Nassau County, Judge: Michele M. Woodard [Not selected for publication in the Official Reports]
Is an employee entitled to payment of his or her accrued, but unused, vacation credit upon his or her resignation? Typically the answer is yes.*
This was one of the issued presented by Mary Jane Bolin in her Article 78 petition seeking, among other things, a court order directing Nassau County Board of Cooperative Education Services to pay her for certain accrued leave credits.
Bolin had earlier resigned after she entered a plea of guilty to the crime of attempted grand larceny in the second degree** When Bolin asked BOCES to pay her $14,252.80 for her “banked vacation credit,”*** BOCES, in effect, deemed her resignation the equivalent of “termination for cause” and refused to pay her the cash value of such credit.
Judge Woodward, referring to the Appellate Division’s decision in Bolin v Nassau County Board of Cooperative Education Services 52 AD3d 704, said that in that case the Appellate Division distinguished between unused vacation leave and “vested banked vacation leave,” and found that Bolin failed to state a claim that BOCES was required to pay her the cash value of her 34-day vested banked vacation balance.
The court said that under the relevant collective bargaining agreement, BOCES had the discretion to deny such payment where an employee is separated is for cause. Citing Matter of William Floyd UFSD, 61 AD3 856, Judge Woodward commented that “In such instances the courts have found forfeiture of compensation, deferred or otherwise, warranted under the faithless servant doctrine.”
Authority to refuse to pay an individual for their accrued leave credits under similar circumstances is found in the Rules of the New York State Civil Service Commission, which Rules apply to employees of the State as an employer. 4 NYCRR 23.1, “Payment for accruals upon separation,” provides, in pertinent part, that “No employee who is removed from State service as a result of disciplinary action or who resigns after charges of incompetency or misconduct have been served upon him shall be entitled to compensation for vacation credits under the provisions of this Part.”
* Among exceptions to the general rule: 4 NYCRR 23.1 of Rules of the New York State Civil Service Commission, which apply to employees of the State as an employer, provides, in pertinent part, that the appointing authority may require, as a condition for such payment, that written notice of such resignation be given to the appointing authority at least two weeks prior to the last day of work.
** Bolin was sentenced to five years' probation and required to make restitution in the amount of $62,674.
*** Under the collective bargaining agreement, "Unit members who maintain a vacation day account consisting of more than forty (40) days (regular vacation leave days) will be granted a 'vested bank' of vacation days pursuant to the formula hereinafter set forth. . . Such members will be credited with two (2) days of “vested' vacation leave for every full year of Nassau BOCES service …. Upon resignation for purposes of retirement or resignation for purposes of separation other than a separation for cause, the unit member will be paid a cash sum equal to the number of days remaining in the unit member’s vested bank of vacation leave days.”
Judge Woodard’s decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_31420.pdf
The decision is Bolin v Nassau County Board of Cooperative Education Services 52 AD3d 704 is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_05692.htm
Bolin v Nassau County Bd. of Coop. Educ. Servs., 2010 NY Slip Op 31420(U), May 27, 2010, Supreme Court, Nassau County, Judge: Michele M. Woodard [Not selected for publication in the Official Reports]
Is an employee entitled to payment of his or her accrued, but unused, vacation credit upon his or her resignation? Typically the answer is yes.*
This was one of the issued presented by Mary Jane Bolin in her Article 78 petition seeking, among other things, a court order directing Nassau County Board of Cooperative Education Services to pay her for certain accrued leave credits.
Bolin had earlier resigned after she entered a plea of guilty to the crime of attempted grand larceny in the second degree** When Bolin asked BOCES to pay her $14,252.80 for her “banked vacation credit,”*** BOCES, in effect, deemed her resignation the equivalent of “termination for cause” and refused to pay her the cash value of such credit.
Judge Woodward, referring to the Appellate Division’s decision in Bolin v Nassau County Board of Cooperative Education Services 52 AD3d 704, said that in that case the Appellate Division distinguished between unused vacation leave and “vested banked vacation leave,” and found that Bolin failed to state a claim that BOCES was required to pay her the cash value of her 34-day vested banked vacation balance.
The court said that under the relevant collective bargaining agreement, BOCES had the discretion to deny such payment where an employee is separated is for cause. Citing Matter of William Floyd UFSD, 61 AD3 856, Judge Woodward commented that “In such instances the courts have found forfeiture of compensation, deferred or otherwise, warranted under the faithless servant doctrine.”
Authority to refuse to pay an individual for their accrued leave credits under similar circumstances is found in the Rules of the New York State Civil Service Commission, which Rules apply to employees of the State as an employer. 4 NYCRR 23.1, “Payment for accruals upon separation,” provides, in pertinent part, that “No employee who is removed from State service as a result of disciplinary action or who resigns after charges of incompetency or misconduct have been served upon him shall be entitled to compensation for vacation credits under the provisions of this Part.”
* Among exceptions to the general rule: 4 NYCRR 23.1 of Rules of the New York State Civil Service Commission, which apply to employees of the State as an employer, provides, in pertinent part, that the appointing authority may require, as a condition for such payment, that written notice of such resignation be given to the appointing authority at least two weeks prior to the last day of work.
** Bolin was sentenced to five years' probation and required to make restitution in the amount of $62,674.
*** Under the collective bargaining agreement, "Unit members who maintain a vacation day account consisting of more than forty (40) days (regular vacation leave days) will be granted a 'vested bank' of vacation days pursuant to the formula hereinafter set forth. . . Such members will be credited with two (2) days of “vested' vacation leave for every full year of Nassau BOCES service …. Upon resignation for purposes of retirement or resignation for purposes of separation other than a separation for cause, the unit member will be paid a cash sum equal to the number of days remaining in the unit member’s vested bank of vacation leave days.”
Judge Woodard’s decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_31420.pdf
The decision is Bolin v Nassau County Board of Cooperative Education Services 52 AD3d 704 is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_05692.htm
June 14, 2010
The State's Pension Fund will not be raided to balance State's budget
The State's Pension Fund will not be raided to balance State's budget
Statement by New York State Comptroller Thomas P. DiNapoli
“There have been a number of outrageous and unfounded rumors and erroneous press reports that I will allow a raid of the pension fund to balance the state budget. “Let me be very clear: The pension fund will not be used to balance the budget.
“The Pew Center recognized New York as one of only four fully-funded state pension systems. New York’s strong position has been achieved through long-term, fiscally responsible practices.
"My first job as state comptroller is to protect the one million members, and the rest of New York State taxpayers, from the irresponsibility that has left New Jersey, Illinois, California and dozens of other public pension funds across the nation dangerously under-funded. I will fight any raids on the New York State Common Retirement Fund.
“Shame on those individuals who are playing politics, trying to mislead taxpayers and scare members and retirees who rely on the fund for their financial security. The fund is not a political football.
“The fund is strong. I recently reported that SFY 2009-10 was the third best investment year in the past 20 years. The Pew Report found that our fund is one of the best managed funds in the nation. I will not sacrifice that strength to a dysfunctional budget process.
“The State Comptroller’s office has a long history of protecting the fund from raids. I will protect the fund from any raids under any circumstances.”
Facts about the Fund:
1. Third Highest Return in Last 20 Years: The pension fund posted a 25.9 percent rate of return for the fiscal year ended March 31, 2010, driving the value of fund assets to approximately $132.6 billion.
2. Nationally Recognized for Excellence by Pew Center: In February, the Pew Center on the States issued a report calling New York one of the best managed pension funds in the country. Only four states in the country are fully-funded: New York, Florida, Washington and Wisconsin.
3. Safe, Strong and Secure: The pension fund is one of the best funded public pension funds in the nation and can cover its current and future obligations.
Statement by New York State Comptroller Thomas P. DiNapoli
“There have been a number of outrageous and unfounded rumors and erroneous press reports that I will allow a raid of the pension fund to balance the state budget. “Let me be very clear: The pension fund will not be used to balance the budget.
“The Pew Center recognized New York as one of only four fully-funded state pension systems. New York’s strong position has been achieved through long-term, fiscally responsible practices.
"My first job as state comptroller is to protect the one million members, and the rest of New York State taxpayers, from the irresponsibility that has left New Jersey, Illinois, California and dozens of other public pension funds across the nation dangerously under-funded. I will fight any raids on the New York State Common Retirement Fund.
“Shame on those individuals who are playing politics, trying to mislead taxpayers and scare members and retirees who rely on the fund for their financial security. The fund is not a political football.
“The fund is strong. I recently reported that SFY 2009-10 was the third best investment year in the past 20 years. The Pew Report found that our fund is one of the best managed funds in the nation. I will not sacrifice that strength to a dysfunctional budget process.
“The State Comptroller’s office has a long history of protecting the fund from raids. I will protect the fund from any raids under any circumstances.”
Facts about the Fund:
1. Third Highest Return in Last 20 Years: The pension fund posted a 25.9 percent rate of return for the fiscal year ended March 31, 2010, driving the value of fund assets to approximately $132.6 billion.
2. Nationally Recognized for Excellence by Pew Center: In February, the Pew Center on the States issued a report calling New York one of the best managed pension funds in the country. Only four states in the country are fully-funded: New York, Florida, Washington and Wisconsin.
3. Safe, Strong and Secure: The pension fund is one of the best funded public pension funds in the nation and can cover its current and future obligations.
Whistleblower must blow the whistle to claim the whistleblower protection provided by the Whistleblower Statute, Civil Service Law §75-b
Whistleblower must blow the whistle to claim the whistleblower protection provided by the Whistleblower Statute, Civil Service Law §75-b
Hastie v State Univ. of N.Y. Coll. of Agric. & Tech. At Morrisville, 2010 NY Slip Op 04911, Decided on June 10, 2010, Appellate Division, Third Department
Civil Service Law §75-b protects an officer or employee in the event he or she reports what he or she in good faith believes is an improper governmental action to a governmental body.*
James Hastie was employed by SUNY Morrisville. Among his job duties was overseeing SUNY Morrisville’s development program and fundraising efforts. In the course of reviewing an Internal Revenue Service tax form (IRS form 8283) prepared by a third party involving property donated to Morrisville, Hastie became concerned about the truthfulness of statements regarding the property's appraised value.**
Sharing his concerns with Morrisville's president and its vice-president for administrative services, they directed him to sign the form. Hastie refused and his employment was terminated shortly thereafter.
Hastie then sued Morrisville, claiming he had been subjected to “a retaliatory discharge” within the meaning of Civil Service Law §75-b, the so-called the whistleblower statute. Supreme Court, however, granted Morrisville’s motion to dismiss his petition.
The Appellate Division, in reviewing Hastie’s appeal from the Supreme Court’s ruling, said that notwithstanding its accepting Hastie’s allegations in his complaint as true, it must, nevertheless, affirm the Supreme Court’s ruling.
Explaining that although an adverse employment action may not be taken against a public employee based upon his or her disclosure of information "which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action" to a governmental body, in this instance the alleged wrongdoing consisted of Morrisville’s president and vice-president directing Hastie to sign the receipt section of the IRS form 8283.
Hastie, however, had not reported the alleged improper directive to any governmental body other than the alleged wrongdoers themselves. As §75-b requires that the employee to advise the appointing authority prior to his or her reporting the information to a “governmental body,” the court apparently concluded that neither Morrisville’s president or vice-president qualified as a “governmental body” for the purposes of §75-b in this instance.
Accordingly, the Appellate Division ruled that Hastie had not undertaken “the notification efforts which are a procedural prerequisite to invoke the protections of the statute.”***
In Hastie’s case, the single possible improper governmental action was not the submission of the allegedly flawed tax form by a third party but, rather, “the directives from the alleged wrongdoers, [Morrisville’s] president and vice-president, that [Hastie] sign the receipt section of the form.”
As Hastie had not reported this “directive” to any “governmental body,” he failed to undertake the notification effort that constitutes the procedural prerequisite to his invoking the protections of the statute.
* See, also, Labor Law §740, which essentially applies to employers in the private sector.
** IRS form 8283 required an acknowledgment from Morrisville that it had received the property.
*** Civil Service Law §75-b 2, in pertinent part, provides: “(a) A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.” Further, sub-paragraph (b), in pertinent part, requires that the individual “Prior to disclosing information pursuant to paragraph (a) … shall have made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action….”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04911.htm
Hastie v State Univ. of N.Y. Coll. of Agric. & Tech. At Morrisville, 2010 NY Slip Op 04911, Decided on June 10, 2010, Appellate Division, Third Department
Civil Service Law §75-b protects an officer or employee in the event he or she reports what he or she in good faith believes is an improper governmental action to a governmental body.*
James Hastie was employed by SUNY Morrisville. Among his job duties was overseeing SUNY Morrisville’s development program and fundraising efforts. In the course of reviewing an Internal Revenue Service tax form (IRS form 8283) prepared by a third party involving property donated to Morrisville, Hastie became concerned about the truthfulness of statements regarding the property's appraised value.**
Sharing his concerns with Morrisville's president and its vice-president for administrative services, they directed him to sign the form. Hastie refused and his employment was terminated shortly thereafter.
Hastie then sued Morrisville, claiming he had been subjected to “a retaliatory discharge” within the meaning of Civil Service Law §75-b, the so-called the whistleblower statute. Supreme Court, however, granted Morrisville’s motion to dismiss his petition.
The Appellate Division, in reviewing Hastie’s appeal from the Supreme Court’s ruling, said that notwithstanding its accepting Hastie’s allegations in his complaint as true, it must, nevertheless, affirm the Supreme Court’s ruling.
Explaining that although an adverse employment action may not be taken against a public employee based upon his or her disclosure of information "which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action" to a governmental body, in this instance the alleged wrongdoing consisted of Morrisville’s president and vice-president directing Hastie to sign the receipt section of the IRS form 8283.
Hastie, however, had not reported the alleged improper directive to any governmental body other than the alleged wrongdoers themselves. As §75-b requires that the employee to advise the appointing authority prior to his or her reporting the information to a “governmental body,” the court apparently concluded that neither Morrisville’s president or vice-president qualified as a “governmental body” for the purposes of §75-b in this instance.
Accordingly, the Appellate Division ruled that Hastie had not undertaken “the notification efforts which are a procedural prerequisite to invoke the protections of the statute.”***
In Hastie’s case, the single possible improper governmental action was not the submission of the allegedly flawed tax form by a third party but, rather, “the directives from the alleged wrongdoers, [Morrisville’s] president and vice-president, that [Hastie] sign the receipt section of the form.”
As Hastie had not reported this “directive” to any “governmental body,” he failed to undertake the notification effort that constitutes the procedural prerequisite to his invoking the protections of the statute.
* See, also, Labor Law §740, which essentially applies to employers in the private sector.
** IRS form 8283 required an acknowledgment from Morrisville that it had received the property.
*** Civil Service Law §75-b 2, in pertinent part, provides: “(a) A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.” Further, sub-paragraph (b), in pertinent part, requires that the individual “Prior to disclosing information pursuant to paragraph (a) … shall have made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action….”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04911.htm
Employee disciplined for failing to wear a vehicle seat belt properly
Employee disciplined for failing to wear a vehicle seat belt properly
Department of Sanitation v Parker, OATH Index #1923/10
The New York City Department of Sanitation sought discipline against Michael Parker, a sanitation worker, for improperly wearing his seatbelt while operating a Department vehicle.
A Sanitation Department safety inspector observed Parker driving with his shoulder belt tucked behind his left arm, and issued a ticket when, the inspector alleged Parker became belligerent after receiving a warning.
ALJ Ingrid Addison found Parker guilty of improperly wearing his seat belt while on duty and recommended that Parker be fined two days' pay.
The decision is posted on the Internet at:http://archive.citylaw.org/oath/10_Cases/10-1923.pdf
Department of Sanitation v Parker, OATH Index #1923/10
The New York City Department of Sanitation sought discipline against Michael Parker, a sanitation worker, for improperly wearing his seatbelt while operating a Department vehicle.
A Sanitation Department safety inspector observed Parker driving with his shoulder belt tucked behind his left arm, and issued a ticket when, the inspector alleged Parker became belligerent after receiving a warning.
ALJ Ingrid Addison found Parker guilty of improperly wearing his seat belt while on duty and recommended that Parker be fined two days' pay.
The decision is posted on the Internet at:http://archive.citylaw.org/oath/10_Cases/10-1923.pdf
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