Past practice of using seniority in bidding for shift assignment trumps Sabbath observer’s request for work schedule adjustment

Past practice of using seniority in bidding for shift assignment trumps Sabbath observer’s request for work schedule adjustment
Balint v Carson City [Nevada], CA9, 144 F.3d 1225

Lisette Balint had been selected for employment in the detention center of the Carson City, Nevada Sheriff Department and was to start “on a swing shift” effective Friday, March 31, 1995. However, Balint was a member of a church that barred all forms of secular work during the period its members observed as the Sabbath -- Friday night through Saturday night.

After being selected, Balint told the department that she could not work “during her Sabbath” and requested that her schedule be adjusted to accommodate her religious practice. When the head of the detention department informed Balint that there could be no accommodation, she withdrew her employment application.

In her original application for employment Balint said that she “was willing to work swing-shift, graveyard, weekends and holidays.” She did not mention any religious or other objections to working on certain shifts.

As a “past practice,” Carson City deputy sheriffs participate in a semi-annual bidding system in which the twelve or thirteen deputies assigned to the jail bid for shifts in the order of their seniority.

Contending that Title VII required that the department accommodate her religious needs, Balint sued. The U.S. Circuit Court of Appeals, 9th Circuit disagreed, reversing a lower court ruling in Balint’s favor.

The Court commenced its analysis with the observation that Title VII prohibits employers from discriminating on the basis of religion and that the employer has a duty to accommodate a current or prospective employee’s religious practices unless the accommodation would cause “undue hardship on the conduct of the employer’s business,” citing 42 U.S.C. Sect. 2000e(j).

The applicant or employee must establish a prima facie case of unlawful discrimination. If he or she does so, the burden shifts to the employer to prove that it either initiated good faith efforts to accommodate the employee or that any accommodation would create an undue hardship on the employer.

The department argued, and the court agreed, that it had “a legitimate seniority system, enacted without discriminatory intent” and any attempt to accommodate Balint would, as a matter of law, cause undue hardship.

The Circuit Court concluded that because the Sheriff’s Department had followed a nondiscriminatory seniority-based system for assigning shifts, it had no duty to accommodate Balint, “even if such accommodation would have no more than a de minimis [slight] impact. The court ruled that an employer is not required to alter an existing, bona fide seniority-based shift-bidding system to accommodate an employee’s religious needs.

Individual ineligible for unemployment insurance benefits if compensation exceeds the highest benefit rate applicable during relevant “effective days”

Individual ineligible for unemployment insurance benefits if compensation exceeds the highest benefit rate applicable during relevant “effective days”
Robinson v Commissioner of Labor, 2010 NY Slip Op 06272, decided on July 29, 2010, Appellate Division, Third Department

A claimant for unemployment insurance benefits is eligible to be paid for an accumulation of "effective days" of unemployment, provided that no effective days may be accumulated in any week in which he or she is paid compensation exceeding the highest benefit rate applicable.

Jonathon Robinson applied for unemployment insurance benefits but his claim was rejected by the Unemployment Insurance Appeals Board based on its finding that Robinson received an average weekly wage "far above the maximum weekly benefit rate of $405" and, as a result, “he did not accumulate effective days for those weeks.”

Robinson had been employed as a lecturer at Cornell University for the summer sessions in 2006 and 2007, teaching a class two days per week. He received a flat fee of $9,360 for the summer 2006 session, representing an average weekly wage of $1,560, and a flat fee of $9,780 for the summer 2007 session, representing an average weekly wage of $1,630.

Paid on a semimonthly basis, Robinson applied for unemployment benefits for those weeks in which he did not receive a paycheck, certifying that he had earned less than the maximum weekly benefit rate of $405.

Ultimately it was determined that Robinson was ineligible to receive benefits on the basis that he earned over the statutory limitation for those weeks for which he had claimed entitlement to benefits. He was charged with a recoverable total overpayment of $1,504.75 and, in addition, his right to receive future benefits by 64 effective days on the basis that he had made willful false statements to obtain benefits.

Robinson appealed these determinations by the Board.

The Appellate Division sustained the Board’s decision, commenting that “A claimant is eligible to be paid for an accumulation of ‘effective days" of unemployment, provided that no effective days may be accumulated in any week in which a claimant is paid compensation exceeding the highest benefit rate applicable’ … Here, the record reflects, and claimant admits, that he received an average weekly wage far above the maximum weekly benefit rate of $405 and, therefore, the determination by the Board that he did not accumulate effective days for those weeks is supported by substantial evidence and has a reasonable basis in law.”

As to the Board's finding that Robinson “made willful misrepresentations to obtain benefits,” the Appellate Division concluded that the Board’s decision was supported by substantial evidence.

The decisions reports that Robinson had conceded that he had received and read the unemployment insurance benefits handbook. Accordingly, said the court, the Board could reasonably find that, regardless of his communications with representatives of the Department of Labor, the language in the handbook addressing a claimant's ineligibility for benefits was clear and unambiguous.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06272.htm

The statute of limitations for filing an appeal commences to run on date the individual knew, or should have known, of the event or omission

The statute of limitations for filing an appeal commences to run on date the individual knew, or should have known, of the event or omission
William R. Hayes v The Board of Education of the Saugerties Central School District, Decisions of the Commissioner of Education, Decision No. 16,094

A board member read aloud an anonymous letter in which district employees were criticized at a public board meeting held by the Saugerties Central School District on December 8, 2009. William R. Hayes, who was present at the meeting, asked for a copy of the letter on December 18, 2009. He received the requested copy on January 22, 2010.

Contending that the anonymous letter was disrespectful to teachers and contrary to the Board’s code of ethics and Education Law §1709(18), Hayes filed an appeal with the Commissioner of Education seeking [1] a letter of apology from the School Board to the teaching staff for reading the letter, and [2] the Board's agreement not to read anonymous letters in a public forum in the future. In the alternative, Hayes asked to Commissioner to “chastise” the Board for its alleged unethical behavior.

The Board asked the Commissioner to dismiss the appeal for a number of reasons, including its representation that the appeal is untimely. The Commissioner agreed that Hayes' appeal was untimely and dismissed it.

Noting that an appeal to the Commissioner must be commenced "within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown,” the Commissioner explained that the anonymous letter was read at a Board meeting held on December 8, 2009 and Hayes did not file his appeal until January 26, 2010, more than 30 days later.

As the appeal related solely to the Board’s actions on December 8, 2009, the Commissioner ruled that Hayes’ “belated receipt of a copy of the letter does not excuse his delay” in view of the fact that he was present at the December 8 meeting of the Board and "personally heard and observed the alleged misconduct at that time."

The decision demonstrates the general rule that a statute of limitations for filing an appeal with the Commissioner is measured from the date on which the individual knew, or should have known, of the alleged offending event or omission.

Another frequent basis for the Commissioner rejecting an appeal – the failure of the appellant to name and serve a necessary party, i.e., an individual that may be adversely affected were the Commissioner to sustain the appeal, as illustrated in recent decisions by the Commissioner. See, for example, http://publicpersonnellaw.blogspot.com/2010/07/appeal-to-commissioner-of-education.html .

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16094.htm

Comptroller's audit finds former Town Supervisor's spouse misappropriated $378,000 of the Town’s funds by writing checks to the Supervisor and herself

Comptroller's audit finds former Town Supervisor's spouse misappropriated $378,000 of the Town’s funds by writing checks to the Supervisor and herself
Source: Office of the State Comptroller

According to an audit released by State Comptroller Thomas P. DiNapoli, the spouse of the former supervisor of the Town of Fairfield admitted to misappropriating $378,000 in town funds by using her husband's signature stamp on 347 checks that she made payable to herself and her husband.

The supervisor, who has since resigned, had hired his wife as deputy supervisor.

Following fieldwork by DiNapoli's auditors, the former supervisor's wife was indicted on 350 counts related to the lost money.

Auditors tracked the town's bank activity from 2004 to 2009.

The Comptroller’s report is posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/towns/2010/fairfield.pdf

Uninterrupted Civil Service Law §72 absence for one year or more permits termination of employee pursuant to §73 of the Civil Service Law

Uninterrupted Civil Service Law §72 absence for one year or more permits termination of employee pursuant to §73 of the Civil Service Law
NYC Dept. of Corrections v Anonymous, OATH Index #1472/10

OATH Administrative Law Judge Alessandra Zorgniotti recommended that the New York City Department of Correction terminate a correction officer absent on Civil Service Law Section 72 leave from employment pursuant to Section 73 of the Civil Service Law after the officer has been absent from duty continuously for more than one year due to a non work-related disability.

Zorgniotti credited the opinion of the Department's doctor that the officer was not currently fit to return to work because “his medical condition was active and that the stresses of returning to work in the jail could trigger another episode with serious consequences.”

Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in the Workers’ Compensation Law, while Section 71 of the Civil Service Law provides for a leave of absence when the employee is absent due to an occupational injury or disease.

There is, however, one significant difference between Section 71 leave and Section 72 leave. The one-year leave period* allowed under Section 71 is determined on the basis of the individual’s cumulative absence while the minimum leave period under Section 72 is based on the employee’s ininterrupted absence for one year.

In other words, under Section 72, the employee may be terminated pursuant to Section 73 of the Civil Service Law if he or she has been absent from work for an uninterrupted period of at least one year.

In contrast, an employee absent on Section 71 leave may be terminate after he or she has been absent for a cumulative total of at least one year, even if such absences are intermittent whereby the employee returns to work and then goes on Section 71 leave again because of the same injury or disease.

It should be remembered that under both Section 71 and Section 73, separating an employee from service after the employee has been absent for the minimum period mandated for such leave is discretionary and the appointing authority is not required to terminate the employee.

Further, the individual separated from the position pursuant to either Section 71 or Section 73, as the case may be, is eligible for reinstatement to his or her former position is he or she applies for such reinstatement within one year of termination of the disability. If a suitable position is not available, the individual’s name is to be placed on a preferred list and he or she may be reinstated to a suitable position in a lower grade while on such a preferred list if available.

* In the event is the employee’s absence resulted from an assault sustained in the course of his or her employment, he or she is entitled to a leave of absence for at least two years unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1472.pdf

Federal Court in Michigan holds plaintiff must exhaust local administrative review despite belief that hearing officer was selected by city attorney

Federal Court in Michigan holds plaintiff must exhaust local administrative review despite belief that hearing officer was selected by city attorney
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/

Just because you think an administrative appeal would be useless doesn't mean that the courts will think it is useless. Dean Patty Salkin (Albany Law School) on her Law of the Land blog reports on a Federal District Court case that suggests one must be very, very careful before deciding that available administrative remedies would be useless and charging into the courts.

Dean Salkin’s report is posted on the Internet at: http://lawoftheland.wordpress.com/2010/07/29/federal-dist-court-in-michigan-holds-plaintiff-must-exhaust-local-administrative-review-despite-belief-that-hearing-officer-was-selected-by-city-attorney/

The general rule requires those objecting to administrative action to exhaust their administrative remedies before asking for judicial review.

There is an exception if further administrative steps would be futile and irreparable harm will result from the delay (as with a preliminary injunction).

Fear of bias, however well founded, does not mean that the agency will no-way do the right thing. It could have an attack of logic, or common sense, or honesty, or other insanity. Most agency decision makers, no matter how political, try to follow the rules. Even when the appellant is a whining publicity hound who contributed to the other party.

Edward M. “Ted” McClure

FMLA leave request does not insulate employee from unrelated disciplinary action

FMLA leave request does not insulate employee from unrelated disciplinary action
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.

Howard Gipson was employed as a plaint maintenance worker for Vought Aircraft Industries. He also served as the local union president.

In late 2004, Gibson underwent triple-bypass heart surgery. He was granted FMLA leave for the surgery. In October 2005, Gipson was removed as the local union president. Incident to that removal, his successor removed Gipson's personal effects from the union office and placed them in an adjacent lobby with instructions for Gipson to collect them. He did not.

Gipson's shift supervisor subsequently asked Gipson to remove his effects from the lobby. Gipson did nothing. His supervisor asked him a third time to remove his effects. Gipson replied that it was a union-related matter and that he would not comply without a written directive. His supervisor next gave him a verbal directive to remove his effects, and warned Gipson that failure to do so could result in discipline up to and including discharge. Gipson walked away. He went and saw the company nurse. She told him his blood pressure was slightly elevated. Gipson returned to his station, and told his supervisor he wanted to go home because he was in pain and needed his medicine. Gipson was asked one final time by the HR manager to retrieve his effects. Gipson declined stating that he had a very bad headache.

The company terminated Gipson on the spot for insubordination. Gipson sued alleging that his termination was in retaliation for exercising his FMLA rights. The Sixth Circuit disagreed.

The Court found that there was no a casual connection between is exercise of FMLA rights and his termination. The court opined: "As we have stated, an employee may not insulate himself from a pending dismissal by opportunistically invoking the FMLA."

Here, Gipson, the court found, could not demonstrate that his employer would not have dismissed him regardless of his alleged request for FMLA leave. The Court noted Gipson's admission that he flatly disobeyed the direct order of his supervisors, which "is indisputably grounds for termination."

The Court also cited the finding of the arbitrator that, in violation of a known work rule, Gipson failed to comply with his supervisor's three requests to move his effects, all of which were issued before Gipson had voiced his medical concerns to anyone. While he was not terminated until after Gipson asked for a medical pass to leave for the day, he had been warned prior to his request that failure to obey a direct order to move his effects would result in discipline, including discharge.

According to the Court, "the wheels of termination had already been put into motion before Gipson requested leave." A reasonable jury "could not conclude that it was Gipson's request for a medical pass, rather than Gipson's continuing insubordination, that provoked his firing."

Mr. Bosland Comments: Invoking FMLA leave does not protect an employee from unrelated discipline that is already in the pipeline. Note that the court considered the discipline to be in the pipeline even though formal discipline had not been proposed or issued. Rather, the court focused on whether the discipline would have occurred regardless of the employee's request for FMLA leave. In practice, the employer can demonstrate that it would have issued discipline notwithstanding the exercise of FMLA rights based on conduct that pre-dated the employee's invoking the need for FMLA leave.

Of course, by opportunistically invoking the FMLA, Gipson forced his employer to to go through the great time and expense of litigating the case before both an arbitrator and through the courts. Many employers would look to settle such a case. While that might not guarantee that Gipson would return to his job, a settlement to avoid the substantial expense of litigation might have allowed Gipson to resign with a neutral recommendation, and with a few dollars in his pocket.

The decision is posted on the Internet at: http://www.ca6.uscourts.gov/opinions.pdf/10a0420n-06.pdf