Excessive absenteeism basis for termination
Cicero v Triborough Bridge and Tunnel Auth., 264 AD2d 334
The Triborough Bridge and Tunnel Authority [TBTA] terminated Rocco Cicero, a toll collector, after finding him guilty of charges alleging toll shortages, four unauthorized absences and excessive absenteeism. The finding of “excessive absenteeism” was based on Cicero being absent 80% of the time during a 22-month period. Most of this absence was because of an on-the-job injury suffered by Cicero and most of them were authorized by TBTA after periodic medical evaluations by its physicians.
After a hearing, the Administrative Law Judge (ALJ) sustained the toll shortage charge and one of the unauthorized absence charges, but dismissed the excessive absenteeism charge. The ALJ decided that although Cicero’s absences could be considered “excessive per se,” “it would be unfair to discipline employees for taking lengthy, injury-related leave” that was approved by the Authority without first giving the employee additional notice or warning as to what amount of absences would be deemed excessive and subject him or her to discipline. The ALJ recommended a 5-day suspension for the other infractions.
TBTA accepted the ALJ’s findings concerning the charges related to the toll shortage and unauthorized absences but, in addition, sustained the charge of excessive absenteeism. TBTA’s rationale: its rules explicitly authorized dismissal as a penalty for excessive absenteeism, and Cicero’s 80% absentee rate was plainly excessive.
TBTA’s appointing authority commented that Cicero’s absenteeism continued even after the charges were filed against him and that his excessive absences had resulted in serious morale and financial problems to the agency.
Cicero appealed and won an order by State Supreme Court Justice Alice Schlesinger annulling his termination and directing TBTA to reinstate him on the grounds that TBTA’s determination was arbitrary and capricious. Judge Schlesinger concluded that Cicero had been deprived of his due process rights, because he was not given notice that his approved absences could ultimately be considered “excessive”, and therefore misconduct. The Appellate Division reversed Judge Schlesinger’s ruling.
The Appellate Division decided that TBTA’s decision to terminate Cicero’s employment for excessive absenteeism “had a rational basis and should not be disturbed.” The courts said that the ALJ acknowledged that an absentee rate in excess of 50% “may be deemed excessive per se” and that Cicero’s absentee rate was well beyond that threshold. While the ALJ and Judge Schlesinger decided that Cicero had not been given “adequate notice,” the Appellate Division said that it disagreed and reversed.
The decision comments that TBTA’s rules clearly state that “excessive absence... will be cause for dismissal.” In addition, the governing collective bargaining agreement guarantees employees only 12 days sick leave per year, and TBTA issued a new policy in 1992 providing that a memorandum of unsatisfactory attendance would be issued to an employee after a 5th sick day was taken. This, said the court, meant that Cicero should have been on notice from numerous sources that excessive absences would not be tolerated.
The Appellate Division also rejected Cicero’s argument that his absences were approved and medically justified and therefore excused for the purposes of maintaining any disciplinary action against him.
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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
October 05, 2010
Filing a timely appeal challenging administrative decisions critical
Filing a timely appeal challenging administrative decisions critical
Decker v BOCES Monroe 2-Orleans, Decisions of the Commissioner of Education #14173
It is not unusual for a disappointed job seeker to press for reconsideration of his or her application for appointment. The Decker case demonstrates that once a “final determination” concerning the appointment is made, seeking reconsideration does not toll the statute of limitations for filing a timely appeal of the decision.
Marvin R. Decker applied for a teaching position with Monroe2-Orleans BOCES. In February 1998, he learned that another applicant had been selected and was to be appointed effective March 31, 1998. Decker then “engaged in lengthy correspondence” with the BOCES in an effort to secure his appointment to the position.
In June 1998, the district superintendent candidly advised Decker that the board was not going to change its mind and suggested that he “seek a determination” from the Commissioner of Education or the courts. Notwithstanding this suggestion, Decker continued to correspond with the BOCES through October 1998 and did not file his Section 310 appeal with the Commissioner until December 16, 1998.
The Commissioner dismissed Decker’s appeal as untimely, rejecting Decker’s request that his delay in filing the appeal be excused “because he was trying to resolve this matter with [the BOCES].” The Commissioner pointed out that there were “numerous decisions ... that an attempt to gain reconsideration of a final determination does not stop the running of the [statute of] limitations period.”
In addition, Decker’s appeal contained a fatal defect, which would have required the Commissioner to dismiss his appeal even if it were timely filed: Decker neglected to name, and serve, a necessary party to his appeal - the successful candidate.* The Commissioner noted that Decker sought an order directing his appointment effective March 31, 1998, which relief “clearly threatens the rights of the incumbent....”
Some of the technical elements to keep in mind in filing Section 310 appeals to the Commissioner of Education are:
1. Appeals must be filed within 30 days “from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown” [8 NYCRR 275.16].
2. If the agency agrees to “reconsider its original determination,” this decision would trigger a “new” statute of limitations period running from the date of the “new” final determination.
3. The appellant is required to file an affidavit proving service of a copy of the petition on the respondents [8 NYCRR 257.9; 276.8]
* Sometimes it is possible to correct this type of problem by filing a new appeal naming, and serving, all necessary parties omitted in the original appeal. Such a filing, however, must still meet the original time limits for perfecting the appeal.
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Decker v BOCES Monroe 2-Orleans, Decisions of the Commissioner of Education #14173
It is not unusual for a disappointed job seeker to press for reconsideration of his or her application for appointment. The Decker case demonstrates that once a “final determination” concerning the appointment is made, seeking reconsideration does not toll the statute of limitations for filing a timely appeal of the decision.
Marvin R. Decker applied for a teaching position with Monroe2-Orleans BOCES. In February 1998, he learned that another applicant had been selected and was to be appointed effective March 31, 1998. Decker then “engaged in lengthy correspondence” with the BOCES in an effort to secure his appointment to the position.
In June 1998, the district superintendent candidly advised Decker that the board was not going to change its mind and suggested that he “seek a determination” from the Commissioner of Education or the courts. Notwithstanding this suggestion, Decker continued to correspond with the BOCES through October 1998 and did not file his Section 310 appeal with the Commissioner until December 16, 1998.
The Commissioner dismissed Decker’s appeal as untimely, rejecting Decker’s request that his delay in filing the appeal be excused “because he was trying to resolve this matter with [the BOCES].” The Commissioner pointed out that there were “numerous decisions ... that an attempt to gain reconsideration of a final determination does not stop the running of the [statute of] limitations period.”
In addition, Decker’s appeal contained a fatal defect, which would have required the Commissioner to dismiss his appeal even if it were timely filed: Decker neglected to name, and serve, a necessary party to his appeal - the successful candidate.* The Commissioner noted that Decker sought an order directing his appointment effective March 31, 1998, which relief “clearly threatens the rights of the incumbent....”
Some of the technical elements to keep in mind in filing Section 310 appeals to the Commissioner of Education are:
1. Appeals must be filed within 30 days “from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown” [8 NYCRR 275.16].
2. If the agency agrees to “reconsider its original determination,” this decision would trigger a “new” statute of limitations period running from the date of the “new” final determination.
3. The appellant is required to file an affidavit proving service of a copy of the petition on the respondents [8 NYCRR 257.9; 276.8]
* Sometimes it is possible to correct this type of problem by filing a new appeal naming, and serving, all necessary parties omitted in the original appeal. Such a filing, however, must still meet the original time limits for perfecting the appeal.
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Using internal investigation reports in civil lawsuits
Using internal investigation reports in civil lawsuits
Ramirez v MBSTOA, 258 A.D.2d 326
It is not uncommon for an employer to undertake an “internal investigation” of an incident involving alleged negligence or misconduct on the part of an employee in the performance of his or her duties. For example, an internal affairs unit of a police department may conduct an “internal investigation” following allegations of negligence or misconduct filed against a police officer.
If the internal investigator finds that the employee “was at fault” and states this conclusion in his or her final report, may a plaintiff use this as an “admission” by the employer in a lawsuit for negligence?
Not necessarily. In Ramirez wanted to use an internal investigation report prepared by MBSTOA investigators that concluded that the MBSTOA’s driver who was involved in a particular accident was “at fault” in his lawsuit against MBSTOA to prove “negligence” on its part. The Appellate Division upheld a lower court’s ruling that Ramirez could not use the investigation report as evidence in the lawsuit that Ramirez brought against MBSTOA for negligence.
The court’s rationale: the admission of the report into evidence “would be unfairly prejudicial” to MBSTOA and “misleading to the jury.” The trial court had barred Ramirez’s introduction of the MBSTOA’s initial internal investigatory report because it found that the investigator’s determination was based on the Authority’s “internal rules and policies” and that those rules and policies “exceeded the applicable common-law negligence standard of care.”
In other words, MBSTOA demanded a higher standard of performance on the part of its drivers than was required under common law. The Appellate Division concurred with the Supreme Court judge’s ruling, observing that the initial report’s conclusion that the MBSTOA driver “was at fault” was changed on review to a finding of “questionable”.
The lesson here is that if an agency wishes to prevent adverse information contained in an internal investigation report from being used in a trial, it must show that the report was prepared in consideration of a standard of care that is higher than that imposed under common [or case] law.
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Ramirez v MBSTOA, 258 A.D.2d 326
It is not uncommon for an employer to undertake an “internal investigation” of an incident involving alleged negligence or misconduct on the part of an employee in the performance of his or her duties. For example, an internal affairs unit of a police department may conduct an “internal investigation” following allegations of negligence or misconduct filed against a police officer.
If the internal investigator finds that the employee “was at fault” and states this conclusion in his or her final report, may a plaintiff use this as an “admission” by the employer in a lawsuit for negligence?
Not necessarily. In Ramirez wanted to use an internal investigation report prepared by MBSTOA investigators that concluded that the MBSTOA’s driver who was involved in a particular accident was “at fault” in his lawsuit against MBSTOA to prove “negligence” on its part. The Appellate Division upheld a lower court’s ruling that Ramirez could not use the investigation report as evidence in the lawsuit that Ramirez brought against MBSTOA for negligence.
The court’s rationale: the admission of the report into evidence “would be unfairly prejudicial” to MBSTOA and “misleading to the jury.” The trial court had barred Ramirez’s introduction of the MBSTOA’s initial internal investigatory report because it found that the investigator’s determination was based on the Authority’s “internal rules and policies” and that those rules and policies “exceeded the applicable common-law negligence standard of care.”
In other words, MBSTOA demanded a higher standard of performance on the part of its drivers than was required under common law. The Appellate Division concurred with the Supreme Court judge’s ruling, observing that the initial report’s conclusion that the MBSTOA driver “was at fault” was changed on review to a finding of “questionable”.
The lesson here is that if an agency wishes to prevent adverse information contained in an internal investigation report from being used in a trial, it must show that the report was prepared in consideration of a standard of care that is higher than that imposed under common [or case] law.
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Filing an employer application for involuntary ordinary disability retirement on behalf of the employee
Filing an employer application for involuntary ordinary disability retirement on behalf of the employee
Oshinsky v NYC Housing Auth., USDC-SDNY
Various state retirement laws authorize an employer to file an application for retirement on behalf of an individual who is unable to perform his or her duties if the individual declines to do so. Can the filing of an employer application, resulting in the involuntary retirement of an employee, constitute an act of unlawful discrimination?
This was one of the issues considered by a federal district court judge in Oshinsky v New York City Housing Authority. The decision suggests that such a filing by an employer application could constitute unlawful discrimination if it is determined that it was in the nature of retaliation.
Abby Oshinsky, a former New York City Housing Authority [NYCHA] police officer, asked a federal district court judge to award her back pay, front pay, and $2 million in damages. She said her Title VII of the 1964 Civil Rights Act [42 USC 2000e] rights were violated as she was subjected to “retaliatory discharge,” unlawful discrimination, and sexual harassment. She also claimed violations of the state Human Rights Law.
Oshinsky had filed nine different complaints over a period of several years, three of which were brought under Title VII. One of her Title VII claims alleged that she had been the victim of a “retaliatory discharge” based on her having been retirement on ordinary disability as a result of NYPD (which had merged with the housing authority police) filing an employer application for retirement on her behalf.
Among the significant events relevant to Oshinsky’s claims:
1. In January 1994 Oshinsky, then an employee of NYCHA, slipped and fell while at work, striking her head. Initially assigned to “limited duty,” in November 1994, NYCHA placed Oshinsky on sick leave based on her “complaining of headaches, inability to concentrate, and feelings of anxiety and depression.”
2. NYCHA police were merged into NYPD while Oshinsky was on sick leave.
3. On August 9, 1995, Oshinsky, now a NYPD employee, applied for accident disability retirement and benefits, complaining of “post-concussion syndrome.”
4. As required by New York City regulations, NYPD then submitted an employer application for ordinary disability on Oshinsky’s behalf.
Oshinsky’s application for accidental disability retirement was rejected after a finding that her disability was not the “natural and proximate result of accidental injury received in the performance of police duty.” However, the application for ordinary disability retirement filed on her behalf by NYPD was approved and in November 1996, she was retired on ordinary disability.
Oshinsky has then filed a complaint with the EEOC contending that her retirement for “ordinary disability” was, in effect, a wrongful discharge. The EEOC issued a Notice of Right to Sue letter on May 28, 1998 but her claims against the NYPD for “retaliatory discharge” were dismissed by Federal District Court Judge Allen G. Schwartz. The court said that in order to establish a prima facie case of retaliation under Title VII and state law, a plaintiff must show three elements: (1) participation in a protected activity known to the defendant; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action.
While it was clear that Oshinsky applied for accident disability retirement and benefits based on her alleged “post-concussion syndrome,” in her Title VII complaint she contended that she had been “tricked” into filing the application. Judge Schwartz said that he assumed that for the purpose of deciding the City’s motion for summary judgment that “when the NYPD retired [Oshinsky] based upon a diagnosis of depression, and awarded her a less desirable [ordinary] retirement package, it subjected her to an adverse employment action.” Notwithstanding this, the court said that:
[w]e find, however, that [Oshinsky] has failed to demonstrate a causal connection between the sexual harassment complaints she filed while she was with NYCHA and what she refers to as her “forced” retirement by the NYPD. Plaintiff filed her complaints against NYCHA in February 1990 and January 1992. At the time she came to the NYPD, [Oshinsky] had been out on sick leave since November 1994. She was retired by the NYPD in November 1996, almost five years after the second complaint, without ever actually having performed any work for the NYPD. There is no basis to conclude that [Oshinsky’s] complaints, filed in 1990 and 1992 against one agency, led to her “forced” retirement in 1996 by another agency.
While the court in this case decided that in this instance there was no basis to conclude that NYPD’s filing an application on behalf of Oshinsky for ordinary disability retirement constituted a “retaliatory discharge,” the implication is that such a claim could serve as a basis for a Title VII action and, if proved, redress provided.
Judge Schwartz summarily dismissed the eight other claims filed by Oshinsky alleging violations of Title VII and the State Human Rights Law and various torts. With respect to Oshinsky naming her superior, Richie Aalbue, as a defendant, Judge Schwartz said that “no cause of action can lie against an individual under Title VII.” While the Title VII claims against Aalbue were dismissed, the decision notes that the Second Circuit has held that an individual who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the New York Human Rights Law, citing Matter of Tomka v Seiler Corporation, 66 F.3d 1295.
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Oshinsky v NYC Housing Auth., USDC-SDNY
Various state retirement laws authorize an employer to file an application for retirement on behalf of an individual who is unable to perform his or her duties if the individual declines to do so. Can the filing of an employer application, resulting in the involuntary retirement of an employee, constitute an act of unlawful discrimination?
This was one of the issues considered by a federal district court judge in Oshinsky v New York City Housing Authority. The decision suggests that such a filing by an employer application could constitute unlawful discrimination if it is determined that it was in the nature of retaliation.
Abby Oshinsky, a former New York City Housing Authority [NYCHA] police officer, asked a federal district court judge to award her back pay, front pay, and $2 million in damages. She said her Title VII of the 1964 Civil Rights Act [42 USC 2000e] rights were violated as she was subjected to “retaliatory discharge,” unlawful discrimination, and sexual harassment. She also claimed violations of the state Human Rights Law.
Oshinsky had filed nine different complaints over a period of several years, three of which were brought under Title VII. One of her Title VII claims alleged that she had been the victim of a “retaliatory discharge” based on her having been retirement on ordinary disability as a result of NYPD (which had merged with the housing authority police) filing an employer application for retirement on her behalf.
Among the significant events relevant to Oshinsky’s claims:
1. In January 1994 Oshinsky, then an employee of NYCHA, slipped and fell while at work, striking her head. Initially assigned to “limited duty,” in November 1994, NYCHA placed Oshinsky on sick leave based on her “complaining of headaches, inability to concentrate, and feelings of anxiety and depression.”
2. NYCHA police were merged into NYPD while Oshinsky was on sick leave.
3. On August 9, 1995, Oshinsky, now a NYPD employee, applied for accident disability retirement and benefits, complaining of “post-concussion syndrome.”
4. As required by New York City regulations, NYPD then submitted an employer application for ordinary disability on Oshinsky’s behalf.
Oshinsky’s application for accidental disability retirement was rejected after a finding that her disability was not the “natural and proximate result of accidental injury received in the performance of police duty.” However, the application for ordinary disability retirement filed on her behalf by NYPD was approved and in November 1996, she was retired on ordinary disability.
Oshinsky has then filed a complaint with the EEOC contending that her retirement for “ordinary disability” was, in effect, a wrongful discharge. The EEOC issued a Notice of Right to Sue letter on May 28, 1998 but her claims against the NYPD for “retaliatory discharge” were dismissed by Federal District Court Judge Allen G. Schwartz. The court said that in order to establish a prima facie case of retaliation under Title VII and state law, a plaintiff must show three elements: (1) participation in a protected activity known to the defendant; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action.
While it was clear that Oshinsky applied for accident disability retirement and benefits based on her alleged “post-concussion syndrome,” in her Title VII complaint she contended that she had been “tricked” into filing the application. Judge Schwartz said that he assumed that for the purpose of deciding the City’s motion for summary judgment that “when the NYPD retired [Oshinsky] based upon a diagnosis of depression, and awarded her a less desirable [ordinary] retirement package, it subjected her to an adverse employment action.” Notwithstanding this, the court said that:
[w]e find, however, that [Oshinsky] has failed to demonstrate a causal connection between the sexual harassment complaints she filed while she was with NYCHA and what she refers to as her “forced” retirement by the NYPD. Plaintiff filed her complaints against NYCHA in February 1990 and January 1992. At the time she came to the NYPD, [Oshinsky] had been out on sick leave since November 1994. She was retired by the NYPD in November 1996, almost five years after the second complaint, without ever actually having performed any work for the NYPD. There is no basis to conclude that [Oshinsky’s] complaints, filed in 1990 and 1992 against one agency, led to her “forced” retirement in 1996 by another agency.
While the court in this case decided that in this instance there was no basis to conclude that NYPD’s filing an application on behalf of Oshinsky for ordinary disability retirement constituted a “retaliatory discharge,” the implication is that such a claim could serve as a basis for a Title VII action and, if proved, redress provided.
Judge Schwartz summarily dismissed the eight other claims filed by Oshinsky alleging violations of Title VII and the State Human Rights Law and various torts. With respect to Oshinsky naming her superior, Richie Aalbue, as a defendant, Judge Schwartz said that “no cause of action can lie against an individual under Title VII.” While the Title VII claims against Aalbue were dismissed, the decision notes that the Second Circuit has held that an individual who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the New York Human Rights Law, citing Matter of Tomka v Seiler Corporation, 66 F.3d 1295.
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October 04, 2010
Conduct that was the subject of counseling memoranda may be the basis for disciplinary charges subsequently served on the employee
Conduct that was the subject of counseling memoranda may be the basis for disciplinary charges subsequently served on the employeeMatter of Board of Educ. of the Dundee Cent. School Dist. v Coleman, 2010 NY Slip Op 51684(U), Decided on October 1, 2010, Supreme Court, Yates County, Judge W. Patrick Falvey [Not selected for publication in the Official Reports]
The Board of Education of the Dundee Central School District filed disciplinary charges against Douglas Coleman, a tenured social studies teacher, pursuant to Education Law §3020-a.
The Hearing Officer found the Coleman guilty of some of the charges and dismissed others. He imposed a penalty of suspension from all teaching duties without pay, but directed Dundee to continue paying its contributions for Coleman’s medical insurance coverage during the period of Coleman's suspension without pay. In accordance with the Hearing Officer's decision, Dundee set Coleman’s suspension without pay for the period from June 2, 2010 through February 1, 2011.
Dundee then filed a petition pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] asking the court to vacate a portion of the Hearing Officer's decision. Dundee argued that the Hearing Officer “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.”
The two major points advanced by Dundee:
1. The Hearing Officer was incorrect in dismissing certain charges that Dundee filed against Coleman on the theory that the school district had earlier given Coleman “counseling memos concerning the underlying conduct that gave rise to them.”
2. The Hearing Officer's determination that the school district must continue to pay employer contributions for Coleman’s health insurance coverage during his 6-month suspension without pay was inconsistent with Education Law §3020-a(4)(a), which section, it argued, “necessarily involves a suspension of all payments by Dundee for Coleman's benefit.”
As to the dismissal of certain of the disciplinary charges filed against Coleman, Judge Falvey said that “There is no support for the premise that if a School District gives a counseling memo in the first instance, rather than immediately proceeding to bring formal charges, that it has somehow waived its right to do so at a future date.”
Judge Falvey explained that it was clear from case law that a school district is not precluded from including incidents giving rise to counseling memoranda as part of formal charges in a Education Law §3020-a proceeding, citing Hoyt v. Board of Education of the Webuttuck Central School District, 52 NY2d 625 and Cohn v. Board of Education of the City School District of the City of New York, 74 AD3d 57.*
In the words of the court: “The gist of the foregoing cases stands for the proposition that teachers are not entitled to have Education Law §3020-a disciplinary protections just because a counseling memo issues. Rather, the courts note that the teachers are given an opportunity to file their written responses to the counseling memos and further action may never be taken against them. However, in the event formal disciplinary proceedings ensue the teachers are entitled to their full panoply of rights and protections under Education Law §3020-a. Clearly, based upon the foregoing case law, it is anticipated that school districts may choose to seek disciplinary charges against teachers based upon the totality of the circumstances the school districts are reviewing.”
Accordingly, Judge Falvey vacated the Hearing Officer's dismissal of Charge 1, Specifications 1.1, 1.2 and 1.3, as well as Charge 2, Specifications 2.1, 2.2 and 2.3.**
With respect to the Hearing Officer directing Dundee to continue making its employer contributions for Coleman’s health insurance premiums during the period of his suspension without pay, the court agreed with the school district that "a suspension without pay" pursuant to Education Law §3020-a(4)(a) necessarily involves a suspension of all payments by Dundee for Coleman's benefit.”
Judge Falvey then vacated the “Hearing Officer’s direction that Dundee pay for Coleman's health insurance benefits during his period of suspension,” explaining that “The statutory scheme clearly contemplates suspension of all financial benefits upon a suspension without pay.”
In addition, the court directed Coleman to reimburse Dundee for any such costs already advanced on Coleman's behalf by Dundee and Dundee was “immediately stayed from making any further contributions during the suspension period.”
Finally, Judge Falvey directed the Hearing Officer to reconsider Specifications 1.1 - 1.3 and 2.1 - 2.3, commenting that in the event the Hearing Officer "finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty."
In making its ruling, the Court said that Coleman's suspension was to continue in accordance with the Hearing Officer's existing decision, subject to any modification following the Hearing Officer’s reconsideration of the matter as directed by the court.
Harvey Randall Comments: As to the decision's addressing the payment of health insurance premiums during the period of a disciplinary suspension, such an individual remains an employee while so suspended without pay and may continue in the health insurance plan but if he or she remains in the plan, he or she is required to pay both the employer contribution and the employee contribution while he or she of "off the payroll." Technically, the individual is on "leave without pay" for a period equal in length to the period of suspension without pay imposed as the disciplinary penalty.
Although the ruling does not indicate the carrier of the health insurance plan provided by the school district, were it the State's health insurance plan [NYSHIP] 4 NYCRR 73.3(b)(1) would obtain. 4 NYCRR 73.3(b)(1), in pertinent part, provides: An employee on leave without pay … shall be required to pay the entire charge (both employee's and employer's contributions) on account of such coverage for each full pay period of absence .... [emphasis supplied].
Assuming, without deciding, that Dundee is not a participating employer in NYSHIP, the court's directive that Coleman reimburse Dundee for any such costs it already advanced on Coleman's behalf as premiums in a non-NYSHIP plan and staying Dundee from making any further employer contributions for health insurance during Coleman’s period of suspension without pay is consistent with the policy set out in 4 NYCRR 73.3(b)(1) with respect to participating employers.
With regard to State's dental insurance plan,*** 4 NYCRR 74.3(a) provides as follows:
Contributions. (a) Rate of contribution. The rate of contribution of the State on account of the coverage of its employees and their dependents shall be 100 percent of the charge on account of individual coverage and 100 percent of the charge on account of dependent coverage. Notwithstanding the foregoing provisions an employee on leave without pay, whose coverage is continued pursuant to this Part shall be required to pay the entire charge on account of such coverage for each full month of absence [emphasis supplied].
* The undersigned notes that the court also cited "Employment History and Disciplinary Action by Harvey Randall, 2001 No. 2 Pub. Emp. L. Notes 27," in its ruling on this point.
** The matter was remanded to the Hearing Officer to reconsider Specifications 1.1 - 1.3 and 2.1 - 2.3 with the comment that “If the Hearing Officer finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty.”
*** The State’s dental plan is available to employees of the State as an employer and to the employees of a public authority, public benefit corporation, or quasi-public organization of the State submitting a certified copy of a resolution of its governing body electing such inclusion to the President of the State Civil Service Commission.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51684.htm
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NYPPL
The Board of Education of the Dundee Central School District filed disciplinary charges against Douglas Coleman, a tenured social studies teacher, pursuant to Education Law §3020-a.
The Hearing Officer found the Coleman guilty of some of the charges and dismissed others. He imposed a penalty of suspension from all teaching duties without pay, but directed Dundee to continue paying its contributions for Coleman’s medical insurance coverage during the period of Coleman's suspension without pay. In accordance with the Hearing Officer's decision, Dundee set Coleman’s suspension without pay for the period from June 2, 2010 through February 1, 2011.
Dundee then filed a petition pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] asking the court to vacate a portion of the Hearing Officer's decision. Dundee argued that the Hearing Officer “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.”
The two major points advanced by Dundee:
1. The Hearing Officer was incorrect in dismissing certain charges that Dundee filed against Coleman on the theory that the school district had earlier given Coleman “counseling memos concerning the underlying conduct that gave rise to them.”
2. The Hearing Officer's determination that the school district must continue to pay employer contributions for Coleman’s health insurance coverage during his 6-month suspension without pay was inconsistent with Education Law §3020-a(4)(a), which section, it argued, “necessarily involves a suspension of all payments by Dundee for Coleman's benefit.”
As to the dismissal of certain of the disciplinary charges filed against Coleman, Judge Falvey said that “There is no support for the premise that if a School District gives a counseling memo in the first instance, rather than immediately proceeding to bring formal charges, that it has somehow waived its right to do so at a future date.”
Judge Falvey explained that it was clear from case law that a school district is not precluded from including incidents giving rise to counseling memoranda as part of formal charges in a Education Law §3020-a proceeding, citing Hoyt v. Board of Education of the Webuttuck Central School District, 52 NY2d 625 and Cohn v. Board of Education of the City School District of the City of New York, 74 AD3d 57.*
In the words of the court: “The gist of the foregoing cases stands for the proposition that teachers are not entitled to have Education Law §3020-a disciplinary protections just because a counseling memo issues. Rather, the courts note that the teachers are given an opportunity to file their written responses to the counseling memos and further action may never be taken against them. However, in the event formal disciplinary proceedings ensue the teachers are entitled to their full panoply of rights and protections under Education Law §3020-a. Clearly, based upon the foregoing case law, it is anticipated that school districts may choose to seek disciplinary charges against teachers based upon the totality of the circumstances the school districts are reviewing.”
Accordingly, Judge Falvey vacated the Hearing Officer's dismissal of Charge 1, Specifications 1.1, 1.2 and 1.3, as well as Charge 2, Specifications 2.1, 2.2 and 2.3.**
With respect to the Hearing Officer directing Dundee to continue making its employer contributions for Coleman’s health insurance premiums during the period of his suspension without pay, the court agreed with the school district that "a suspension without pay" pursuant to Education Law §3020-a(4)(a) necessarily involves a suspension of all payments by Dundee for Coleman's benefit.”
Judge Falvey then vacated the “Hearing Officer’s direction that Dundee pay for Coleman's health insurance benefits during his period of suspension,” explaining that “The statutory scheme clearly contemplates suspension of all financial benefits upon a suspension without pay.”
In addition, the court directed Coleman to reimburse Dundee for any such costs already advanced on Coleman's behalf by Dundee and Dundee was “immediately stayed from making any further contributions during the suspension period.”
Finally, Judge Falvey directed the Hearing Officer to reconsider Specifications 1.1 - 1.3 and 2.1 - 2.3, commenting that in the event the Hearing Officer "finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty."
In making its ruling, the Court said that Coleman's suspension was to continue in accordance with the Hearing Officer's existing decision, subject to any modification following the Hearing Officer’s reconsideration of the matter as directed by the court.
Harvey Randall Comments: As to the decision's addressing the payment of health insurance premiums during the period of a disciplinary suspension, such an individual remains an employee while so suspended without pay and may continue in the health insurance plan but if he or she remains in the plan, he or she is required to pay both the employer contribution and the employee contribution while he or she of "off the payroll." Technically, the individual is on "leave without pay" for a period equal in length to the period of suspension without pay imposed as the disciplinary penalty.
Although the ruling does not indicate the carrier of the health insurance plan provided by the school district, were it the State's health insurance plan [NYSHIP] 4 NYCRR 73.3(b)(1) would obtain. 4 NYCRR 73.3(b)(1), in pertinent part, provides: An employee on leave without pay … shall be required to pay the entire charge (both employee's and employer's contributions) on account of such coverage for each full pay period of absence .... [emphasis supplied].
Assuming, without deciding, that Dundee is not a participating employer in NYSHIP, the court's directive that Coleman reimburse Dundee for any such costs it already advanced on Coleman's behalf as premiums in a non-NYSHIP plan and staying Dundee from making any further employer contributions for health insurance during Coleman’s period of suspension without pay is consistent with the policy set out in 4 NYCRR 73.3(b)(1) with respect to participating employers.
With regard to State's dental insurance plan,*** 4 NYCRR 74.3(a) provides as follows:
Contributions. (a) Rate of contribution. The rate of contribution of the State on account of the coverage of its employees and their dependents shall be 100 percent of the charge on account of individual coverage and 100 percent of the charge on account of dependent coverage. Notwithstanding the foregoing provisions an employee on leave without pay, whose coverage is continued pursuant to this Part shall be required to pay the entire charge on account of such coverage for each full month of absence [emphasis supplied].
* The undersigned notes that the court also cited "Employment History and Disciplinary Action by Harvey Randall, 2001 No. 2 Pub. Emp. L. Notes 27," in its ruling on this point.
** The matter was remanded to the Hearing Officer to reconsider Specifications 1.1 - 1.3 and 2.1 - 2.3 with the comment that “If the Hearing Officer finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty.”
*** The State’s dental plan is available to employees of the State as an employer and to the employees of a public authority, public benefit corporation, or quasi-public organization of the State submitting a certified copy of a resolution of its governing body electing such inclusion to the President of the State Civil Service Commission.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51684.htm
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NYPPL
A disability that causes or contributes to an employee’s decision to retire constitutes an involuntary withdrawal from the labor market
A disability that causes or contributes to an employee’s decision to retire constitutes an involuntary withdrawal from the labor market Matter of Jimerson v New York City Police Dept., 2010 NY Slip Op 06729, Decided on September 30, 2010, Appellate Division, Third Department
Delores Jimerson was employed as a senior administrative aide by the New York City Police Department. In May 2002, claimant applied for workers' compensation benefits claiming injuries to her hands, neck and back due to repetitive movement associated with her employment. A work-related injury to the neck and back was ultimately established.
Jimerson continued to work for the Police Department but ultimately claimed that she was totally disabled from working.*
A Workers' Compensation Law Judge determined that Jimerson had voluntarily removed herself from the labor market and denied her additional workers' compensation benefits. The Workers’ Compensation Board subsequently affirmed the Administrative Law Judge’s determination that Jimerson had voluntarily removed herself from the labor market.
In response to Jimerson appeal, the Appellate Division commented that "Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board to resolve and, if supported by substantial evidence in the record, the Board's resolution of that issue will not be disturbed." However, the court continued, “It is well settled … that "a retirement is an involuntary withdrawal if the claimant's disability caused or contributed to the decision to retire."
Reviewing the record, the Appellate Division said that it did not find substantial evidence to support the Board's determination that Jimerson had voluntarily withdrew from the labor market. Although, said the court, the Board found that Jimerson "was able to perform her regular job duties without restriction on a full-time basis until removing herself from the labor market," there is a complete absence of evidence to support such finding. Indeed, the decision notes that “there is substantial evidence to the contrary.”
The Appellate Division then reversed the Board’s determination and remanded the matter to it for “further proceedings not inconsistent with this Court's decision.”
* Jimerson retired in November 2006.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06729.htm
NYPPL
Delores Jimerson was employed as a senior administrative aide by the New York City Police Department. In May 2002, claimant applied for workers' compensation benefits claiming injuries to her hands, neck and back due to repetitive movement associated with her employment. A work-related injury to the neck and back was ultimately established.
Jimerson continued to work for the Police Department but ultimately claimed that she was totally disabled from working.*
A Workers' Compensation Law Judge determined that Jimerson had voluntarily removed herself from the labor market and denied her additional workers' compensation benefits. The Workers’ Compensation Board subsequently affirmed the Administrative Law Judge’s determination that Jimerson had voluntarily removed herself from the labor market.
In response to Jimerson appeal, the Appellate Division commented that "Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board to resolve and, if supported by substantial evidence in the record, the Board's resolution of that issue will not be disturbed." However, the court continued, “It is well settled … that "a retirement is an involuntary withdrawal if the claimant's disability caused or contributed to the decision to retire."
Reviewing the record, the Appellate Division said that it did not find substantial evidence to support the Board's determination that Jimerson had voluntarily withdrew from the labor market. Although, said the court, the Board found that Jimerson "was able to perform her regular job duties without restriction on a full-time basis until removing herself from the labor market," there is a complete absence of evidence to support such finding. Indeed, the decision notes that “there is substantial evidence to the contrary.”
The Appellate Division then reversed the Board’s determination and remanded the matter to it for “further proceedings not inconsistent with this Court's decision.”
* Jimerson retired in November 2006.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06729.htm
NYPPL
Asserting rights not covered by the Taylor Law collective bargaining agreement
Asserting rights not covered by the Taylor Law collective bargaining agreement
CSEA v Nassau Co., App. Div., 2nd Dept., 264 AD2d 798, Motion for leave to appeal denied, 94 NY2d 759
Clearly, a public employee union may, under appropriate circumstances, file a lawsuit, or demand arbitration, for an alleged breach of a collective bargaining agreement. May an employee organization representing public employees sue on the basis of alleged violations of rights not included in a Taylor Law agreement?
In Aeneas McDonald Police Benevolent Association v City of Geneva, 92 NY2d 326, the Court of Appeals said a public sector labor union may assert rights not covered in its collective bargaining agreement if it can show that:
(a) one or more of its members has standing to sue;
(b) the interests sought to be protected are sufficiently germane to the union to satisfy the court that the union is an appropriate representative of those interests; and
(c) Individual members of the organization” are not required to assert the claim in for the tribunal to provide complete relief.
In this instance, CSEA sued, seeking reinstatement and back pay for members of its collective bargaining unit laid off as a result of Nassau County’s 1992 budget difficulties. Its theory: the layoff was breach of its collective bargaining agreement with the county.
The Appellate Division affirmed a lower court’s ruling that CSEA lacked standing to maintain the action. While couched in terms of a contract violation, the court said that there was no underlying contract provision involved.
As to CSEA’s standing under the Aeneas McDonald Police Benevolent Association doctrine, the court found that it failed to meet the third test set by the Court of Appeals since the participation of the individuals affected was required in this instance.
The case arose as the result of the county administration terminating or demoting some 2,000 employees in response to its 1992 “budget crisis.” One employee who was affected by this, Joseph E. Torre, successfully challenged the action taken against him as violative of the doctrine of legislative equivalency [Torre v County of Nassau, 86 NY2d 421].
Simply stated, the doctrine holds that “a position created by a legislative act must be abolished by a correlative legislative act.” In other words, a county administrator may not unilaterally abolish a position created by the legislature.
A number of county workers affected by the abolition of positions in 1992 have attempted to interpose legislative equivalency claims in an effort to attain reinstatement and back salary.
When CSEA alleged a breach of the controlling Taylor Law agreement in an effort to win reinstatement for individuals in the collective bargaining unit laid off in 1992, the court said that “it is clear that, in reality, the CSEA is attempting to assert a Torre legislative equivalency claim on behalf of all aggrieved employees.” Since it is “the nature and origin of the wrong, the substance and not the form, which controls,” the Appellate Division held that the lower court’s dismissal of CSEA’s petition was correct.
According to the ruling, “the claimed wrong and the rights sought to be enforced arise outside the four corners of the collective bargaining agreement.” Therefore, CSEA had to show that it satisfied the three-prong test set out in the Aeneas McDonald decision in order to maintain the action. The Appellate Division said that CSEA failed to meet the “third prong of the test.”
The Appellate Division ruled that the individual circumstances of each employee would have to be considered to determine whether or not the Torre rule was violated.
The court noted that it had earlier addressed the issue in Weitzenbergh v Nassau County Department of Recreation and Parks, 249 AD2d 538. It denied class action status in the Weitzenbergh case, noting that “there were numerous differences among members of the proposed class and no evidentiary support for the proposition that their positions were improperly abolished under the doctrine of legislative equivalency.”
.
CSEA v Nassau Co., App. Div., 2nd Dept., 264 AD2d 798, Motion for leave to appeal denied, 94 NY2d 759
Clearly, a public employee union may, under appropriate circumstances, file a lawsuit, or demand arbitration, for an alleged breach of a collective bargaining agreement. May an employee organization representing public employees sue on the basis of alleged violations of rights not included in a Taylor Law agreement?
In Aeneas McDonald Police Benevolent Association v City of Geneva, 92 NY2d 326, the Court of Appeals said a public sector labor union may assert rights not covered in its collective bargaining agreement if it can show that:
(a) one or more of its members has standing to sue;
(b) the interests sought to be protected are sufficiently germane to the union to satisfy the court that the union is an appropriate representative of those interests; and
(c) Individual members of the organization” are not required to assert the claim in for the tribunal to provide complete relief.
In this instance, CSEA sued, seeking reinstatement and back pay for members of its collective bargaining unit laid off as a result of Nassau County’s 1992 budget difficulties. Its theory: the layoff was breach of its collective bargaining agreement with the county.
The Appellate Division affirmed a lower court’s ruling that CSEA lacked standing to maintain the action. While couched in terms of a contract violation, the court said that there was no underlying contract provision involved.
As to CSEA’s standing under the Aeneas McDonald Police Benevolent Association doctrine, the court found that it failed to meet the third test set by the Court of Appeals since the participation of the individuals affected was required in this instance.
The case arose as the result of the county administration terminating or demoting some 2,000 employees in response to its 1992 “budget crisis.” One employee who was affected by this, Joseph E. Torre, successfully challenged the action taken against him as violative of the doctrine of legislative equivalency [Torre v County of Nassau, 86 NY2d 421].
Simply stated, the doctrine holds that “a position created by a legislative act must be abolished by a correlative legislative act.” In other words, a county administrator may not unilaterally abolish a position created by the legislature.
A number of county workers affected by the abolition of positions in 1992 have attempted to interpose legislative equivalency claims in an effort to attain reinstatement and back salary.
When CSEA alleged a breach of the controlling Taylor Law agreement in an effort to win reinstatement for individuals in the collective bargaining unit laid off in 1992, the court said that “it is clear that, in reality, the CSEA is attempting to assert a Torre legislative equivalency claim on behalf of all aggrieved employees.” Since it is “the nature and origin of the wrong, the substance and not the form, which controls,” the Appellate Division held that the lower court’s dismissal of CSEA’s petition was correct.
According to the ruling, “the claimed wrong and the rights sought to be enforced arise outside the four corners of the collective bargaining agreement.” Therefore, CSEA had to show that it satisfied the three-prong test set out in the Aeneas McDonald decision in order to maintain the action. The Appellate Division said that CSEA failed to meet the “third prong of the test.”
The Appellate Division ruled that the individual circumstances of each employee would have to be considered to determine whether or not the Torre rule was violated.
The court noted that it had earlier addressed the issue in Weitzenbergh v Nassau County Department of Recreation and Parks, 249 AD2d 538. It denied class action status in the Weitzenbergh case, noting that “there were numerous differences among members of the proposed class and no evidentiary support for the proposition that their positions were improperly abolished under the doctrine of legislative equivalency.”
.
Suing for damages for on-the-job personal injury pursuant to General Municipal Law Section 205-e and the firefighter’s rule
Suing for damages for on-the-job personal injury pursuant to General Municipal Law Section 205-e and the firefighter’s rule
Flynn v City of New York, App. Div., First Department, 258 AD2d 129
[Decided with Marron v City of New York, App. Div., First Department]
Section 205-e of the General Municipal Law grants police officers, or their representatives, the right to bring legal action to recover damages for personal injuries or death resulting from another person’s negligence in failing to comply with statutory or regulatory requirements. In addition, Section 205-e provides that “liability may be based on a fellow officer’s conduct,” [see Gonzalez v Iocovellosi, 249 AD2d 143].
In the Flynn and Marron cases the question was whether officers injured in a riot could sue the department under Section 205-e if they could show that their injuries stemmed from a commanding officer’s failure to follow provisions set out in a police department’s training manual and its patrol guide.
The Appellate Division concluded that a “Police Department’s training manual and Patrol Guide provisions cannot serve as the basis of such a claim.” It said that suing pursuant to Section 205-e is limited to the negligent non-compliance with the requirements of any governmental statutes, ordinances, rules, orders and requirements, citing Desiderio v City of New York, 236 AD2d 224.
Kevin Flynn and Steven Marron, both New York City police officers, claimed that the injuries they suffered during a street disturbance were the direct result of Deputy Inspector Michael Julian’s order not to bring any “hats [or] bats” and other protective gear “traditionally used by police in riot situations” despite their availability in a nearby police van. Julian was the commanding officer of their precinct and the officer in charge.
Flynn contended that General Municipal Law Section 205-e applied because the “mandates and requirements” of the Police Department’s Patrol Guide and the Department’s “temporary and standard operating procedures” were not followed.
Disagreeing with Flynn’s argument, the Appellate Division said that “[t]he facts here present a compelling case for the application of the firefighter’s rule.” The rule recognizes that public safety work is inherently dangerous, and is a general bar to officers suing for line-of-duty injuries. The court said that both Flynn and Marron “knew that the crowd was rioting and were well aware of the dangers presented.”
This situation, according to the decision “is hardly a case where ... a patrolman was injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving [the] injury”. The court said that the “record indisputably discloses” that both Flynn and Marron were performing a police function that put them at a heightened risk of injury.
Although the Court of Appeals did not consider the issue of whether an internal departmental guide or training manual constitutes a governmental rule or requirement in the Desmond case [Desmond v City of New York, 88 NY2d 455], it held that Section 205-e was not “intended to give police officers a right to sue for breaches of any and all governmental pronouncements of whatever type and regardless of how general or specific those pronouncements might be.”
The Appellate Division said that in enacting Section 205-e the Legislature did not intend to “upset the settled view that the violation of internal agency memoranda or manuals imposing a higher standard of care on a defendant than that imposed by law could not be the basis of liability against governmental entities.” Thus, said the court, the Supreme Court judge should have granted the City’s motion for summary judgment and dismissed Flynn’s and Marron’s petitions.
The Appellate Division characterized the City’s patrol guide and its training manual as follows:
Neither the Patrol Guide nor the training manual constitutes a well-developed body of law and regulation. They do not even constitute formal rules of the Police Department. The Patrol Guide is an internal manual intended solely for members of the Police Department. It is a compilation of hundreds of pages of guidelines covering every aspect of police life and conduct, including subjects as diverse as personal appearance, financial restrictions, vacation policy, residency requirements and salute courtesies. The Guide serves as the vehicle by which the Police Department regulates itself. That, in some circumstances, certain provisions of the Patrol Guide may also affect the public does not undermine its essentially intra-agency character.
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Flynn v City of New York, App. Div., First Department, 258 AD2d 129
[Decided with Marron v City of New York, App. Div., First Department]
Section 205-e of the General Municipal Law grants police officers, or their representatives, the right to bring legal action to recover damages for personal injuries or death resulting from another person’s negligence in failing to comply with statutory or regulatory requirements. In addition, Section 205-e provides that “liability may be based on a fellow officer’s conduct,” [see Gonzalez v Iocovellosi, 249 AD2d 143].
In the Flynn and Marron cases the question was whether officers injured in a riot could sue the department under Section 205-e if they could show that their injuries stemmed from a commanding officer’s failure to follow provisions set out in a police department’s training manual and its patrol guide.
The Appellate Division concluded that a “Police Department’s training manual and Patrol Guide provisions cannot serve as the basis of such a claim.” It said that suing pursuant to Section 205-e is limited to the negligent non-compliance with the requirements of any governmental statutes, ordinances, rules, orders and requirements, citing Desiderio v City of New York, 236 AD2d 224.
Kevin Flynn and Steven Marron, both New York City police officers, claimed that the injuries they suffered during a street disturbance were the direct result of Deputy Inspector Michael Julian’s order not to bring any “hats [or] bats” and other protective gear “traditionally used by police in riot situations” despite their availability in a nearby police van. Julian was the commanding officer of their precinct and the officer in charge.
Flynn contended that General Municipal Law Section 205-e applied because the “mandates and requirements” of the Police Department’s Patrol Guide and the Department’s “temporary and standard operating procedures” were not followed.
Disagreeing with Flynn’s argument, the Appellate Division said that “[t]he facts here present a compelling case for the application of the firefighter’s rule.” The rule recognizes that public safety work is inherently dangerous, and is a general bar to officers suing for line-of-duty injuries. The court said that both Flynn and Marron “knew that the crowd was rioting and were well aware of the dangers presented.”
This situation, according to the decision “is hardly a case where ... a patrolman was injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving [the] injury”. The court said that the “record indisputably discloses” that both Flynn and Marron were performing a police function that put them at a heightened risk of injury.
Although the Court of Appeals did not consider the issue of whether an internal departmental guide or training manual constitutes a governmental rule or requirement in the Desmond case [Desmond v City of New York, 88 NY2d 455], it held that Section 205-e was not “intended to give police officers a right to sue for breaches of any and all governmental pronouncements of whatever type and regardless of how general or specific those pronouncements might be.”
The Appellate Division said that in enacting Section 205-e the Legislature did not intend to “upset the settled view that the violation of internal agency memoranda or manuals imposing a higher standard of care on a defendant than that imposed by law could not be the basis of liability against governmental entities.” Thus, said the court, the Supreme Court judge should have granted the City’s motion for summary judgment and dismissed Flynn’s and Marron’s petitions.
The Appellate Division characterized the City’s patrol guide and its training manual as follows:
Neither the Patrol Guide nor the training manual constitutes a well-developed body of law and regulation. They do not even constitute formal rules of the Police Department. The Patrol Guide is an internal manual intended solely for members of the Police Department. It is a compilation of hundreds of pages of guidelines covering every aspect of police life and conduct, including subjects as diverse as personal appearance, financial restrictions, vacation policy, residency requirements and salute courtesies. The Guide serves as the vehicle by which the Police Department regulates itself. That, in some circumstances, certain provisions of the Patrol Guide may also affect the public does not undermine its essentially intra-agency character.
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Involuntary placement of employee on medical leave
Involuntary placement of employee on medical leave
Evans v NYS Dept. of Health et al, 2nd Cir., No. 98-7160(L)
Due process requirements generally prevent public employers in New York State from removing employees or placing them on leave without a hearing. Exceptions are permitted under Section 72 of the Civil Service Law, which permits public employers to place individuals on involuntary medical leave without first having a hearing in cases in which the appointing authority determines that the continued presence of the individual on the job constitutes a hazard to the employee, or his or her co-workers or to the public. [Section 72.5]*
Brenda Evans charged that the State Department of Health had violated her constitutional right to due process when she was involuntarily placed on medical leave pursuant to Section 72.
Evans suffered a seizure and initially actually placed herself on medical leave. As it frequently the case in such situations, however, Evans viewed her medical leave being converted into “involuntary sick leave” when the appointing authority refused to allow her to return to duty unless she underwent a medical evaluation and was found qualified to do so.
The Second Circuit U.S. Court of Appeals in New York found in favor of the department. The ruling suggests that if an employer follows the procedures mandated by Section 72, its actions will pass judicial scrutiny on due process grounds. The court noted that the law allows the employer to place the employee on involuntary medical leave following a medical examination as long as the individual has a “right to a subsequent hearing.”
The Rules of the State Civil Service Commission provide that employee on sick-leave may, as a condition for return, be required to undergo medical examination [4 NYCRR 28-1.3(e)]. Conceding that Evans had an “important interest in continued employment,” the Circuit Court concluded that such an interest is limited where the employee is placed on medical leave rather than terminated.*
“[I]n determining what process is due, account must be taken of the length and finality of the deprivation” said the court. “On the facts of this case,” the court held that “it was reasonable to believe that [Evans] had been afforded due process.” The decision notes that prior to the seizure, Evans’ examining physician had recommended that she be placed on medical leave. But the department, consistent with the mandates of Section 72, initially allowed her to remain at work pending a hearing.
Applying a balancing test, the decision states that “[o]n the other side of the scale,” the appointing authority took reasonable steps to assure itself that placing Evans on medical leave was appropriate. “In light of those factors, and the State’s strong interest in protecting itself against disruptive employee behavior, it was reasonable to believe that [Evans] had been afforded due process.”
The Circuit Court said that “[t]o determine the process due [issue], we must weigh (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used, and the probable value of additional or different procedural safeguards; and (3) the government’s interest,” citing Mathews v Eldridge, 424 U.S. 319.
In addition, Evans filed claims under 42 USC. Sections 1981, 1983 and 1985 alleging interference with her constitutional free speech, property and contract rights and that she was subjected to a hostile work environment. Named as defendants were various state entities. The decision notes that “neither a State nor its officials acting in their official capacities are ‘persons’ under Section 1983,” citing Will v Michigan Department of State Police, 491 U.S. 58.
Evans also ran in a wall in her effort to sue certain named officials “in their respective personal capacities.” Her attempt to sue these officials in their “personal capacity,” said the court, is barred by the qualified immunity held by these officials.
The doctrine of qualified immunity protects government officials from personal liability if their conduct either: (1) “did not violate clearly established rights of which a reasonable person would have known, or” (2) “it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.”
* Civil Service Law Section 72 provides for leaves of absence resulting from non-work related injury or illness. Civil Service Law Section 71 [Workers’ Compensation Leave] provides for leaves of absence required as the result of a work-connected injury or illness.
* Section 73 of the Civil Service Law authorizes the “termination” of an individual who has been continuously absent on Section 72 leave for at least one year. However, this “termination” is not the same as a “dismissal” since the individual has an absolute right to return to the position, or a similar position, or be placed on a preferred list, if he or she applies for reinstatement within one year after his or her disability ends.
.
Evans v NYS Dept. of Health et al, 2nd Cir., No. 98-7160(L)
Due process requirements generally prevent public employers in New York State from removing employees or placing them on leave without a hearing. Exceptions are permitted under Section 72 of the Civil Service Law, which permits public employers to place individuals on involuntary medical leave without first having a hearing in cases in which the appointing authority determines that the continued presence of the individual on the job constitutes a hazard to the employee, or his or her co-workers or to the public. [Section 72.5]*
Brenda Evans charged that the State Department of Health had violated her constitutional right to due process when she was involuntarily placed on medical leave pursuant to Section 72.
Evans suffered a seizure and initially actually placed herself on medical leave. As it frequently the case in such situations, however, Evans viewed her medical leave being converted into “involuntary sick leave” when the appointing authority refused to allow her to return to duty unless she underwent a medical evaluation and was found qualified to do so.
The Second Circuit U.S. Court of Appeals in New York found in favor of the department. The ruling suggests that if an employer follows the procedures mandated by Section 72, its actions will pass judicial scrutiny on due process grounds. The court noted that the law allows the employer to place the employee on involuntary medical leave following a medical examination as long as the individual has a “right to a subsequent hearing.”
The Rules of the State Civil Service Commission provide that employee on sick-leave may, as a condition for return, be required to undergo medical examination [4 NYCRR 28-1.3(e)]. Conceding that Evans had an “important interest in continued employment,” the Circuit Court concluded that such an interest is limited where the employee is placed on medical leave rather than terminated.*
“[I]n determining what process is due, account must be taken of the length and finality of the deprivation” said the court. “On the facts of this case,” the court held that “it was reasonable to believe that [Evans] had been afforded due process.” The decision notes that prior to the seizure, Evans’ examining physician had recommended that she be placed on medical leave. But the department, consistent with the mandates of Section 72, initially allowed her to remain at work pending a hearing.
Applying a balancing test, the decision states that “[o]n the other side of the scale,” the appointing authority took reasonable steps to assure itself that placing Evans on medical leave was appropriate. “In light of those factors, and the State’s strong interest in protecting itself against disruptive employee behavior, it was reasonable to believe that [Evans] had been afforded due process.”
The Circuit Court said that “[t]o determine the process due [issue], we must weigh (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used, and the probable value of additional or different procedural safeguards; and (3) the government’s interest,” citing Mathews v Eldridge, 424 U.S. 319.
In addition, Evans filed claims under 42 USC. Sections 1981, 1983 and 1985 alleging interference with her constitutional free speech, property and contract rights and that she was subjected to a hostile work environment. Named as defendants were various state entities. The decision notes that “neither a State nor its officials acting in their official capacities are ‘persons’ under Section 1983,” citing Will v Michigan Department of State Police, 491 U.S. 58.
Evans also ran in a wall in her effort to sue certain named officials “in their respective personal capacities.” Her attempt to sue these officials in their “personal capacity,” said the court, is barred by the qualified immunity held by these officials.
The doctrine of qualified immunity protects government officials from personal liability if their conduct either: (1) “did not violate clearly established rights of which a reasonable person would have known, or” (2) “it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.”
* Civil Service Law Section 72 provides for leaves of absence resulting from non-work related injury or illness. Civil Service Law Section 71 [Workers’ Compensation Leave] provides for leaves of absence required as the result of a work-connected injury or illness.
* Section 73 of the Civil Service Law authorizes the “termination” of an individual who has been continuously absent on Section 72 leave for at least one year. However, this “termination” is not the same as a “dismissal” since the individual has an absolute right to return to the position, or a similar position, or be placed on a preferred list, if he or she applies for reinstatement within one year after his or her disability ends.
.
Designating employee as managerial or confidential
Designating employee as managerial or confidential
Lippman v PERB, App. Div., Third Dept., 263 AD2d 891
The designation of managerial and confidential employees within the meaning of the Taylor Law is important to both employers and unions. In the Lippman case the Appellate Division, Third Department, set out the criteria courts follow in reviewing determinations by the Public Employment Relations Board [PERB] concerning the designation of such personnel.
PERB denied a request by the Office of Court Administration to designate nine high-level, nonjudicial Unified Court System [UCS] employees as managerial or confidential pursuant to Civil Service Law Section 201(7).
Employees designated “managerial or confidential” are excluded from the definition of public employees and are generally not covered “by the myriad of rights and protections afforded to public employees under the Taylor Law.”
The nine individuals served in position with the Court of Appeals, the Law Reporting Bureau and the First and Second Appellate Divisions and were then in a negotiating unit represented by the Civil Service Employees Association, Local 1000.
The Appellate Division affirmed PERB’s determination denying the nine managerial or confidential status on the authority of Court of Appeals decision in Rosen v Public Employment Relations Board, 72 NY2d 42.
Although UCS contended that the incumbents should designated managerial “based upon their role in the policy-making process of the courts where they work,” PERB had found that the nine did not “formulate policy” nor did they have a major role in personnel administration as contemplated by Civil Service Law Section 201(7)(a).
PERB’s “long-standing definitions of policy formulation” includes both “a person who has the authority or responsibility to select among options and to put a proposed policy into effect,” and a person “who participates with regularity in the essential process which results in a policy proposal and the decision to put such a proposal into effect.”
UCS contended that “employees need not be the ultimate decision makers to be designated as managerial policy formulators, and that it is sufficient if they assist the ultimate decision makers.” PERB, said the court, has recognized that the “definition of a policymaker is, and must be, sufficiently broad to include those relatively few individuals who directly assist the ultimate decision makers in reaching the decisions necessary to the conduct of the business of government.”
However, every employee who advise the ultimate decision makers is not automatically a policy formulator to be designated as managerial and excluded from the Taylor Law’s protections. Rather, the employer must demonstrate that the particular employee participates in the essential processes by which the employer makes its decisions regarding the department’s mission and the means by which those policy objectives can best be achieved.
The court said that it would defer to the expert charged with administering the Taylor Law -- PERB -- in view of its expertise with respect to the fundamental policies underlying that law.*
As to the standard the Appellate Division used: “‘[s]o long as [PERB’s] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections ... ‘“, the court said it would accept PERB’s construction if reasonable and not arbitrary or irrational, [Village of Lynbrook v PERB, 48 NY2d 398].
The Court said that “[t]he determination of who “directly assists” the ultimate decision makers necessarily involves drawing distinctions and lines among employees based, inter alia [among other things], upon the nature, timing and level of their involvement in the decision-making processes, and upon the practices and hierarchy of the employer.”
Based on the record before it, the Appellate Division concluded, PERB acted rationally in making such distinctions and determinations regarding these employees.
What about “supervisory employees working with or for managerial employees.” The decision notes that such personnel “are not automatically or presumably confidential employees within the meaning of Civil Service Law Section 201(7)(a)(ii).” “Indeed,” said the court, “knowledge of personnel or disciplinary matters is often inherent in supervisory positions and does not warrant a confidential designation where it is limited and does not encompass labor relations information significant to the basic mission of the employer.”
* In contrast, the Appellate Division pointed out that “where ... the question is one of pure statutory construction,” dependent only on accurate understanding of the legislative intent, judicial review is less restricted as “statutory construction is the function of the courts.”
.
Lippman v PERB, App. Div., Third Dept., 263 AD2d 891
The designation of managerial and confidential employees within the meaning of the Taylor Law is important to both employers and unions. In the Lippman case the Appellate Division, Third Department, set out the criteria courts follow in reviewing determinations by the Public Employment Relations Board [PERB] concerning the designation of such personnel.
PERB denied a request by the Office of Court Administration to designate nine high-level, nonjudicial Unified Court System [UCS] employees as managerial or confidential pursuant to Civil Service Law Section 201(7).
Employees designated “managerial or confidential” are excluded from the definition of public employees and are generally not covered “by the myriad of rights and protections afforded to public employees under the Taylor Law.”
The nine individuals served in position with the Court of Appeals, the Law Reporting Bureau and the First and Second Appellate Divisions and were then in a negotiating unit represented by the Civil Service Employees Association, Local 1000.
The Appellate Division affirmed PERB’s determination denying the nine managerial or confidential status on the authority of Court of Appeals decision in Rosen v Public Employment Relations Board, 72 NY2d 42.
Although UCS contended that the incumbents should designated managerial “based upon their role in the policy-making process of the courts where they work,” PERB had found that the nine did not “formulate policy” nor did they have a major role in personnel administration as contemplated by Civil Service Law Section 201(7)(a).
PERB’s “long-standing definitions of policy formulation” includes both “a person who has the authority or responsibility to select among options and to put a proposed policy into effect,” and a person “who participates with regularity in the essential process which results in a policy proposal and the decision to put such a proposal into effect.”
UCS contended that “employees need not be the ultimate decision makers to be designated as managerial policy formulators, and that it is sufficient if they assist the ultimate decision makers.” PERB, said the court, has recognized that the “definition of a policymaker is, and must be, sufficiently broad to include those relatively few individuals who directly assist the ultimate decision makers in reaching the decisions necessary to the conduct of the business of government.”
However, every employee who advise the ultimate decision makers is not automatically a policy formulator to be designated as managerial and excluded from the Taylor Law’s protections. Rather, the employer must demonstrate that the particular employee participates in the essential processes by which the employer makes its decisions regarding the department’s mission and the means by which those policy objectives can best be achieved.
The court said that it would defer to the expert charged with administering the Taylor Law -- PERB -- in view of its expertise with respect to the fundamental policies underlying that law.*
As to the standard the Appellate Division used: “‘[s]o long as [PERB’s] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections ... ‘“, the court said it would accept PERB’s construction if reasonable and not arbitrary or irrational, [Village of Lynbrook v PERB, 48 NY2d 398].
The Court said that “[t]he determination of who “directly assists” the ultimate decision makers necessarily involves drawing distinctions and lines among employees based, inter alia [among other things], upon the nature, timing and level of their involvement in the decision-making processes, and upon the practices and hierarchy of the employer.”
Based on the record before it, the Appellate Division concluded, PERB acted rationally in making such distinctions and determinations regarding these employees.
What about “supervisory employees working with or for managerial employees.” The decision notes that such personnel “are not automatically or presumably confidential employees within the meaning of Civil Service Law Section 201(7)(a)(ii).” “Indeed,” said the court, “knowledge of personnel or disciplinary matters is often inherent in supervisory positions and does not warrant a confidential designation where it is limited and does not encompass labor relations information significant to the basic mission of the employer.”
* In contrast, the Appellate Division pointed out that “where ... the question is one of pure statutory construction,” dependent only on accurate understanding of the legislative intent, judicial review is less restricted as “statutory construction is the function of the courts.”
.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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