Failure to exhaust available administrative remedies fatal to seeking court review

Failure to exhaust available administrative remedies fatal to seeking court review
White v Pozzi, 72 AD3d 1106*

Employee’s failure to exhaust his administrative remedies coupled with his failure to demonstrate an exception to the exhaustion requirement applied in his case requires the denial of his petition seeking judicial review of the disciplinary determination.

* Text of decision e-mailed to registered readers.

Disciplinary suspension without pay

Disciplinary suspension without pay
Empire Hook & Ladder Co. #1 v Nyack FD, [Not selected for publication in the Official Reports]

It is not at all unusual for an employee to challenge his or her disciplinary suspension by filing an Article 78 petition with a court.

In contrast, an Article 78 petition challenging the disciplinary suspension of a volunteer organization is not at all common. Yet a disciplinary suspension was the basis for a lawsuit filed by the Empire Hook and Ladder Company #1, a volunteer fire department, against the Nyack Fire Department.

The genesis of the action was the Village of Upper Nyack’s approval of a request submitted by a member of Empire to purchase a vehicle to be used to transport Empire members to fires as well as certain non-fire details.

The Nyack Fire Department, however, said that the member who submitted the request to the village had violated Nyack’s rules because the member had appeared before the village board without first obtaining permission to do so from Nyack’s chief. The chief declared that unless Empire apologized within 10 days “the matter would be reopened and appropriate action would be taken.”

No apology was received and Nyack told Empire it was suspended from service for 30 days for violating the department’s rules. The suspension, however, “did not include fires, emergencies or funeral detail.”

Empire sued, contending that its suspension was arbitrary and capricious. It argued that (1) it was never presented with written charges specifying the Nyack rule or regulation which it allegedly violated and (2) the penalty imposed -- suspension for 30 days -- violated General Municipal Law Section 209-i because it had not been given a hearing on the charges.*

According to the ruling, Empire was a member of the Nyack Fire Department. One of Nyack’s rules prohibited “an individual or company ... from communicating or asking to go before any village body for any type of equipment or any other reason without obtaining permission from the Chief of the Nyack Fire Department.”

Based on this prohibition, Acting Justice Weiner dismissed Empire’s petition, ruling that:

1. GML Section 209-i did not apply in this situation and therefore no “pre-suspension” hearing was required; and

2. The discipline imposed on Empire was not so disproportionate to the offense committed as to shock one’s sense of fairness.

* GML 209-i authorizes fire departments to make regulations governing removal of volunteer officers and volunteer members of such departments and member companies for incompetence or misconduct. The Section also requires “notice and hearing” before a member may be removed from his or her position. In Armstrong v. Centerville Fire Company, 83 NY2d 937, however, the Court of Appeals decided that in adopting Section 209-i the legislature did not intend to interfere with discipline in connection with the conduct of the internal affairs of a fire department.

Employer’s good faith suspicion of employee’s stealing defeats FMLA claim

Employer’s good faith suspicion of employee’s stealing defeats FMLA claim
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.

Gwendolyn Donald worked for Arby's as an assistant manger. Shortly after being hired she suffered a series of medical problems causing intermittent periods of extreme pain. She was granted FMLA leave for related surgeries. While working the drive-through window, Donald’s cash register was over $4.00. Concerned that this might be evidence of employee theft, the company conducted an investigation, including video surveillance.

The surveillance suggested that Donald was ringing folks up at the full amount while recording the transaction in the register as discounted, and pocketing the difference. The suspicion could not be confirmed because the customers could have been handing coupons to Donald, which would explain the discrepancy. The company confronted Donald with its suspicions. When she refused to acknowledge in writing that she was stealing, she was fired.

Donald sued alleging that she was terminated in retaliation for taking FMLA leave in the past. She also claimed that her termination interferences with her right to return to work from intermittent FMLA leave in the future.

The Court initially noted that there were substantial questions regarding her FMLA retaliation/interference claims. Such questions would normally defeat the employer's motion for summary judgment. Because, however, the court found that the company established a legitimate, nondiscriminatory reason to end Donald's employment, and that Donald had failed to establish that the reason was pretextual.

The court agreed that being $4.00 over may be evidence of theft. The court also credited the company's investigation, which confirmed the possibility of theft. The company's handbook cited theft as a reason for immediate termination. A demonstrable risk of theft, the court found, is a legitimate reason for an employer to end that person's employment.

The court rejected the non-theft explanations offered by Donald. The fact that the discrepancy could be explained because the customers could have presented discount coupons failed to diminish the legitimacy of the company's concerns. The court explained:

There may be other explanations for the discrepancies beyond the, but Plaintiff has offered no reason to believe Plum, Barocko, and Ballance fabricated their concern to cover up their unlawful discrimination. Indeed, whether Plaintiff was actually stealing or not is largely irrelevant, the relevant question is whether the evidence of theft was a sufficient reason and the actual reason for Plaintiff's termination. Plaintiff's evidence does not demonstrate that Defendant made up its reason for the termination, the stated reason was not the real reason, or that the stated reason is insufficient to justify the decision. Nor is there any evidence that the inconvenience associated with her requests for FMLA lave played any role in the decision to end Donald's employment.

Mr. Bosland Comments: So long as an employer can establish that it had a good faith belief that it took an adverse action against an employee for legitimate, nondiscriminatory reasons, the employer will likely be successful in defeating an FMLA at the summary judgment phase. The employer does not have to prove that its suspicions were, in fact, correct. It need only prove that it held those suspicions in good faith, and acted on those suspicions when it decided to terminate the employee.

To show pretext, an employee will have to demonstrate that the employer did not have a good faith belief that the employee engaged in conduct that could get them terminated. This is not an easy burden. Simply offering innocent, alternative explanations won't do it. Stated differently, the fact that the employer may not be able to prove theft "beyond a reasonable doubt" is not the standard. To defeat an FMLA claim, all the employer need prove is that it had a reasonable, good faith suspicion of theft.

Evidence of innocent, alternative explanations might, however, be used as evidence of a particularly substandard employer investigation. Coupled with some adverse comments incident to the use of FMLA leave in the past, and a short period of time between protected activity and the adverse action, and the employee can start to build a credible argument to survive the employer's inevitable summary judgment motion.

The case Donald v. Sybra Inc., No. 09-12252-BC (E.D. Mich. Aug. 11, 2010).

The decisions is posted on the Internet on the “Leagle” law blog at:
http://www.leagle.com/unsecure/page.htm?shortname=infdco20100811b16