Court sustains Human Rights’ finding that the reasons advanced by employer for terminating employee was pretext for unlawful discrimination

Court sustains Human Rights’ finding that the reasons advanced by employer for terminating employee was pretext for unlawful discrimination
New York State Office of Mental Health v New York State Division of Human Rights, 2010 NY Slip Op 06268, Decided on July 29, 2010, Appellate Division, Third Department

Bisi Asimolowo was employed by the Office of Mental Health as a pharmacy intern in 1992 and Asimolowo understood that he was expected to take and pass the licensing examination to become a pharmacist.

Although Asimolowo failed to become a licensed pharmacist, Mental Health periodically obtained authorization from the Department of Civil Service to continue employing him as a pharmacy intern.

The decision reports that in 2003 Asimolowo was unable to work for approximately 27 days due to undergoing treatment for cancer.

Asimolowo subsequently submitted a doctor's note stating that he was “medically disabled due to an ankle and knee injury.” On that same day Mental Health notified him that his employment would end, “ostensibly because the Department [of Civil Service] had declined to authorize his continued employment.”

Asimolowo filed a verified complaint with State Division of Human Rights alleging that among other things, disability discrimination. Ultimately a SDHR Administrative Law Judge issued a recommended order finding that although Mental Health had advanced an otherwise legitimate, nondiscrimatory reason for terminating Asimolowo's employment, it was, in fact, a pretext and Asimolowo had been discharged because of his disability.

The Commissioner of Human Rights adopted the ALJ's findings but reduced the proposed award of damages from $50,000 to $30,000.

Noting that “A determination of SDHR is entitled to considerable deference due to its expertise in assessing discrimination claims, and we must uphold that determination if it is supported by substantial evidence,” the Appellate Division said that “The parties do not dispute that Asimolowo suffered from a disability but was capable of working as a pharmacy intern or that [Mental Health] provided a legitimate, nondiscrimatory reason to support his termination.

Accordingly, said the court, it need only determine whether substantial evidence supports SDHR's finding that Asimolowo demonstrated that Mental Health's nondiscrimatory reason was, in fact, a pretext for unlawful discrimination.

Recognizing that Mental Health “undoubtedly had legitimate concerns about Asimolowo's employment status given his failure to become a licensed pharmacist,” the Appellate Division said that “serious efforts to remove him only began after he used a substantial quantity of sick leave to address medical issues.”

The court also commented that “discussions of an unknown nature” occurred between Mental Health officials and the Department of Civil Service and that Asimolowo was not advised of his termination until after his supervisor was notified of his knee and ankle injury, “despite [Mental Health’s] purported awareness of the pending termination for months beforehand.”

The court concluded that although the evidence in the record could support a different result, substantial evidence supported SDHR's determination that “relying upon Asimolowo's dubious civil service status to terminate him was a pretext and that [Mental Health] intended, by the ‘devious and subtle means’ often employed, to discriminate.”

The Division's award of damages for Asimolowo's emotional distress was also affirmed. Such injuries, said the court, may be proven by a complainant's own testimony, even in the absence of medical or other treatment.

The Division had found that Asimolowo was continuing to feel "enormous mental anguish and humiliation" at the time of the hearing, over four years later, and that he was "deeply hurt" that his children had lost respect for him as a result of losing his job.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06268.htm

Paying prevailing wages

Paying prevailing wages
Office of the Comptroller ex rel Local 924 v Office of Labor Relations, OATH Index No. 464/10
Office of the Comptroller ex rel Local 1087 v Office of Labor Relations, OATH Index No. 588/10

The "prevailing wage law" requires the City of New York to pay “laborers, workmen and mechanics” in its employ the prevailing rate of wages and benefits paid in the private sector for work in the same trade in the locality.

The City and public sector unions are required to negotiate in good faith to enter into a contract setting the wages and benefits for prevailing wage employees but when negotiations fail, the union may file a complaint with the Comptroller on behalf of its members.

The Comptroller is authorized to conduct an investigation to determine the prevailing wages and benefits for the group of employees and has designated New York City's Office of Administrative Tribunals and Hearings [OATH] to conduct hearings in these matters.

In the Local 924 case OATH Administrative Law Judge Tynia Richard recommended that Laborers and City Laborers be paid wage and benefits in accord with those set forth in the contract for Local 79 mason tenders.

The Office of Labor Relations had contended that cleaners and porters who belong to Local 32BJ are the proper private sector match for the City Laborer and Laborer position. Comparing the work performed by the City Laborers and Laborers to that performed by mason tenders and porters and cleaners, ALJ Richard found the City employees' work more comparable to the mason tenders.

The Local 924 decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-464.pdf

The Local 1087 case concerned a proceeding to set the prevailing wages and benefits for City locksmiths and locksmith supervisors.

The Comptroller and Local 241 sought a determination that both titles be paid wages and benefits in accord with those paid pursuant to a collective bargaining agreement for locksmiths and supervisors at Columbia University.

The Office of Labor Relations argued that the union was not the prevailing one because its members do not comprise 30 percent or more of the locksmiths in New York City.

OATH Administrative Law Judge Addison ruled for the Comptroller and the union. Although the number of Local 241 locksmiths did not independently meet the 30 percent threshold for the title, when combined with Local 348 locksmiths, collectively the union locksmiths exceeded the thirty percent threshold.

ALJ Addison also ruled that where two or more collective bargaining agreements are involved, the prevailing wage may be set by picking the predominant one, here the members of Local 241 who work at Columbia University.

The Local 1087 decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-588.pdf

Protecting whistleblowers the focus of a policy statement issued by Wayne County [NY]

Protecting whistleblowers the focus of a policy statement issued by Wayne County [NY]
Source: Wayne County web site

Wayne County recently issued a policy statement addressing Whistleblower Protections . The statement indicates that “Wayne County will extend to its employees all protections afforded to them under the applicable State and federal Whistleblower laws including the Federal False Claims Act, the New York State False Claims Act and the New York State Civil Service Law.

The statement notes that New York State Civil Service Law [Civil Service Law §75-B] prohibits the public employers from dismissing or taking other disciplinary or other adverse personnel action against a public employee who reports fraud, wrongdoing or violations of the law, "to Wayne County or to another government body." These protections apply to disciplinary proceedings, arbitration and collective bargaining agreements where the adverse action taken by the employer is based solely on retaliation for whistleblower conduct.

The statement also notes that in the event the employee who has been the subject of a retaliatory personnel action is not subject to final and binding arbitration, the employee may bring a civil action in court and the court may order reinstatement of the employee to the same or an equivalent position, the reinstatement of full fringe benefits and seniority rights and compensation for lost wages, benefits and other remuneration including court costs and attorney fees.

Also addressed are the State and Federal False Claims Acts.

Under the Federal False Claims Act* any person may bring a qui tam** civil action for a violation of the Federal False Claims Act on behalf of the federal government. Further, an employee may bring a qui tam lawsuit in U. S. District Court if the employee has been discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or employer because of lawful acts done by the employee in reporting a false claim to the employer or to a government body.

The policy provides that in the event “if employee, contractor or vendor witnesses, learns of, or is asked to participate in, an activity that could potentially violate or is suspected or known to violate this Compliance Plan or any Wayne County policy, or any law or regulation, he or she must report the request and the activity."

According to the statement, "Employees, contractors or vendors should endeavor to contact their supervisor, acting supervisor, or department head first. If those persons are not available, or the reporter has reason to believe that the supervisor or department head is a party to the activity, or if the suspected violation presents an immediate or serious danger to the public health or safety, then the employee, contractor or vendor shall contact the Compliance Officer.”

As to New York State’s False Claims Act, Article 13, State Finance Law, (NYSFCA),*** also referred to as a Qui Tam Statute or as a whistleblower law, the NYSFCA allows a private individual (including a public employee) to sue a person or company (including a fellow employee or employer in their individual capacity), "if such person or company knowingly submits a false or fraudulent claim to a state or local government." Such false or fraudulent financial claims include, but are not limited to, health care fraud in programs such as Medicaid.

* On the Internet at: http://www.law.cornell.edu/uscode/31/3729.html

** One of the "ancient common law writs," a writ of qui tam allows a private individual to prosecute an alleged violation of §3729. If successful, the individual can receive all or part of any penalty imposed. A private person may bring such a civil action pursuant to §3730 of the Act, which provides that "The action shall be brought in the name of the Government [by a private individual]."

*** See, also, §740 of the State Labor Law.

The full text of the Wayne County policy statement is available on the Internet at:
http://www.co.wayne.ny.us/Departments/ctyattorney/Wayne%20County%20Compliance%20Plan%20-%20Final%20_1_.pdf

Revised Model State Administrative Procedure Act

Revised Model State Administrative Procedure Act
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/

From the National Conference of Commissioners on Uniform State Laws (NCCUSL) web site:

The Revised Model State Administrative Procedure Act is an update of the 1980 act of the same name.

The 1980 Act provided procedures for promulgating administrative regulations and for adjudicating disputes before administrative bodies.

The Revision updates the act to recognize electronic communications and other state procedural innovations since the Act was originally promulgated.

The draft presented at the recently completed Annual Meeting, along with other related materials, is available here.

Edward M. “Ted” McClure
Phoenix School of Law

Oregon retired police officers do not have a property interest in continuing in the health insurance plan available to police officers on active duty

Oregon retired police officers do not have a property interest in continuing in the health insurance plan available to police officers on active duty
Doyle v City of Medford, USCA, 9th Circuit, No. 09-16037

Although the City of Medford, Oregon did not provide health insurance coverage to its retired police officers upon their retirement, the retirees could elect to remain covered in the City’s plan for 18 months after their retirement under the Consolidated Omnibus Budget Reconciliation Act of 1985, COBRA, 29 U.S.C. §§1161-1168.

After that 18-month period, the retired police officer could enroll in the Oregon Public Employees Retirement System Health Insurance Program. The City made employer contributions to the Retirement System’s Health Insurance Program.

Ronald Doyle and other retired police officers sued the City and its City Manager, Michael Dyal, contending that they should be provide with the same health insurance coverage available to active police officers pursuant to a collective bargaining agreement between the City and the employee organization representing the police officers upon their retirement.

The US Court of Appeals, Ninth Circuit, ruled that the City of Medford’s decision to deny “active employee” health insurance coverage to its retired police officers did not violate their due process rights as Oregon Revised Statutes §243.303 did not create a property interest in having such health insurance coverage continue into retirement. Accordingly, said the court, the retired police officers lacked a legally protected property interest to the health insurance benefits available to active City police officers under the controlling collective bargaining agreement.

Noting that §243.303 provides that “A local government must make health insurance coverage available to retirees only if the government offers such coverage to current officers and employees,” the Circuit Court held that such a provision did not bar a jurisdiction from considering “real-world circumstances” that could excuse its obligation to cover retirees, citing Town of Castle Rock v. Gonzales, 545 U.S. 748.

In contrast, in Armistead v Vernitron Corp., 944 F.2d 1287, the Circuit Court of Appeals, Sixth Circuit, affirmed a lower court ruling that held that when a collective bargaining agreement is intended to give retirees with lifetime health and life insurance benefits, such benefits were not subject to unilateral termination.

N.B. “Participating employers” in the State's Employee Health Insurance Plan must allow employees to continue in the plan upon retirement [§163.4, Civil Service Law] and are required to pay "not less than fifty percentum of the cost of ... the coverage of its employees and retired employees ... [and] not less than thirty-five percentum ... for the coverage of dependents of employees and retired employees..." [§167.2, Civil Service Law].

The Doyle decision is posted on the Internet at:
http://scholar.google.com/scholar_case?case=13582283851357318805&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Books from the Public Employment Law Press

Books from the Public Employment Law Press

For information about PELP's e-book Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/

For information about PELP's The Discipline Book, now available in both an e-book and in a softcover format, go to: http://booklocker.com/books/3449.html

For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html

An individual must prove his or her case by a “preponderance of the evidence” in order to prevail at a “name-clearing hearing”

An individual must prove his or her case by a “preponderance of the evidence” in order to prevail at a “name-clearing hearing”
Casale v Metropolitan Transp. Auth., 2010 NY Slip Op 06218, decided on July 27, 2010, Appellate Division, First Department

Nicholas Casale, claiming that certain statements in the Metropolitan Transportation Authority's letter to him terminating his employment* characterizing his actions as “dishonest” were false, demanded a name-clearing hearing.**

The hearing officer ruled that Casale was required to prove that the Authority’s statements to which he objected were false by a preponderance of the evidence and that Casale failed to meet this test.

The hearing officer found that Casle had repeatedly mischaracterized his source of information in an investigation of corruption as a confidential informant, concluding that “this conduct was dishonest.”

The Appellate Division said that such a determination by a hearing officer is not foreclosed as a matter of law even if the hearing officer believed that Casale was acting to benefit the Authority rather than for his own personal gain. The court said that the hearing officer is to determine the issue of an employee's dishonesty “with reference to the employer's general business or the employee's own functions and that is precisely what occurred here.”

Nor, said the court, did the hearing officer exceed his jurisdiction in "finding that petitioner engaged in a pattern of dishonesty." The terms of the stipulation governing the name-clearing hearing did not limit the inquiry to the fabrication of the existence of a confidential informant.

* Although Casale’s tenure status is not indicated in the decision, typically New York courts have directed "name-clearing hearings" for probationary employees and for employee without tenure who allege that they have been "stigmatized" as a result of “State action” and the employer has made such "stigmatizing" information public.

** A name clearing hearing serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by his or her former employer. Courts have held that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to the individual and, or, to agency administrators “having a right to know” does not constitute a public disclosure of such information and thus a name-clearing hearing" is not required because of such intra-agency communications.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06218.htm