Police officers claim they were subjected to punishment after failing to meet their "traffic ticket quotas"

Police officers claim they were subjected to punishment after failing to meet their "traffic ticket quotas"
Matarazzo v NYC Police Dept., 261 AD2d 142

Section 215-a of the State Labor Law makes it unlawful to penalize an individual who fails to meet any quota related to the issuance of tickets or summonses written within a specified period of time for traffic violations. The section further provides that any individual who is penalized may “cause to be instituted a grievance proceeding pursuant to the provisions of a collective bargaining agreement, if any, or pursuant to the provisions of section seventy-five-a of the Civil Service Law if no collective bargaining agreement exists.”

However, there is an exception that allows discipline for non-performance of duty in issuing traffic tickets, as long as the employer does not define non-performance as failure to fulfill a quota. In other words, an employer may take a “job action against an employee for failure to satisfactorily perform his or her job assignment of issuing tickets or summonses for traffic violations including parking, standing or stopping except that the employment productivity of such employee shall not be measured by such employee’s failure to satisfactorily comply with the requirement of any quota that the employer may establish.”

Louis Matarazzo and other New York City police officers put Section 215-a to the test when they sued the department for allegedly depriving the officers of meal breaks “as punishment for failure to meet a ticket writing quota.” They asked the court to compensate them for “lost meal time” and to issue a “cease and desist order.”

The Appellate Division dismissed the case because, it said, the officers failed to prove a critical element in their case -- they did not allege the existence of a quota as defined in Labor Law Section 215-a(2). The Appellate Division said that there was no indication of how many tickets the officers were required to write nor the period of time involved.

According to the decision, all that Matarazzo and the others showed was that “two supervising officers from two different precincts directed the individual petitioners to perform duties, during their meal breaks, that were likely to result in the issuance of tickets.” This, said the court, fails to support an inference that Matarazzo and other officers were punished for failure to meet a quota for issuing tickets in violation of Labor Law Section 215-a.
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Challenging a disciplinary determination based on allegations that it was not based on "substantial evidence"

Challenging a disciplinary determination based on allegations that it was not based on "substantial evidence"
Spry v Delaware Co., 253 AD2d 178

One of the most common of reasons set out in an appeal challenging an adverse Section 75 disciplinary determination is that the decision is not supported by substantial evidence. In deciding Spry, the Appellate Division considered the degree of precision with which the individual must identify his or her claims.

Spry was a ward clerk employed by the Delaware County Countryside Care Center. She was charged with numerous specifications of incompetence, insubordination, conduct unbecoming an employee, serious misconduct and unauthorized use of facility property. Following an 11-day administrative hearing conducted pursuant to Civil Service Law Section 75, Spry was found guilty of a great many of the charges.

Rejecting the hearing officer’s recommendation as to the penalty to be imposed, the appointing authority dismissed Spry from her position.

Spry appealed, contending that the findings of guilt were not supported by substantial evidence but her petition “made only conclusory assertions and stated no evidentiary facts in support of its claims.” A State Supreme Court judge dismissed her petition for “failure to state a cause of action.” The sole issue before the Appellate Division: does a petition in a CPLR Article 78 proceeding “raise” the substantial evidence issue within the meaning of CPLR 7804 (g) “by simply alleging that the challenged administrative determination is not supported by substantial evidence”?

First, the court noted that the hearing officer heard testimony over a period of 11 days, generating a record containing 2,664 pages of testimony and 300 pages of exhibits, and issued a 106-page decision finding petitioner guilty of over 100 separate specifications of misconduct.

Nonetheless, said the court, Spry’s petition failed to identify any of the challenged findings of misconduct or the manner in which the hearing evidence is claimed to have been deficient; rather, it merely alleges that “[t]he Hearing Officer’s Recommendation finding the Petitioner guilty of the charges is not supported by substantial evidence within the meaning and intent of CPLR 7803 (4)”.

The Appellate Division then commented that nothing in the record cites any legal authority for the proposition that in order to raise the substantial evidence issue, an Article 78 petition must set out the precise fashion in which the agency determination is not supported by substantial evidence. Accordingly, the court said that it would have to analyze the fundamental legal prerequisites of a petition within the context of the rather unique certiorari proceeding. It concluded that the absence of factual averments is not of itself fatal.

Next the Appellate Division observed that the challenged determination was judicial or quasi-judicial in nature and made on the basis of a hearing at which evidence was taken pursuant to direction by law (CPLR 7803 [4]). The court said that as is clearly the case here, an aggrieved party is entitled to have a court test the legal sufficiency of the evidence relied upon by the agency by simply requesting that it do so.

Finally, the court said that in a certiorari proceeding there is essentially nothing to be “proved”. All evidence has already been adduced at the administrative hearing and findings made thereon. The petitioner’s task is not to prove transactions or occurrences, but rather to present legal argument on the substantial evidence issue.

The bottom line: the claim that the administrative determination is not supported by substantial evidence did not “fail to state a cause of action” and was therefore it was incorrect for Supreme Court to dismiss Spry’s petition.
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Graduate Student seeks assistance concerning "making decisions in employment discrimination cases involving personnel selection procedures"

Graduate Student seeks assistance concerning "making decisions in employment discrimination cases involving personnel selection procedures"

Erica Drew, a graduate student at Florida International University, is collecting data for her Masters Thesis. This research is being supervised by Dr. Vish C. Viswesvaran, Director of the Industrial/Organizational Psychology Program at FIU.

Ms. Drew has asked that NYPPL post the following notice in an effort to assist her in obtaining an appropriate survey population for her study:

"The purpose of this research is to gain perspective on how attorneys make decisions in employment discrimination cases involving personnel selection procedures. I hope that this research will inform organizations, practitioners, and attorneys of selection procedure best practices.

"If you decide to participate, you will be asked to read a short vignette and complete a questionnaire. No identifying information will be collected, so rest assured your identity will remain anonymous. This study should take about 15 minutes of your time.



"If you are willing to participate please click the link below. Thank you for your time and I sincerely hope you will consider participating! If you have any questions or would like the results of this study sent to you, please contact me at edrew001@fiu.edu."

Ms. Drew notes that "IN ORDER TO PARTICIPATE YOU MUST BE A 3RD YEAR LAW STUDENT OR A PRACTICING ATTORNEY WHO HAS EITHER TAKEN AN EMPLOYMENT LAW COURSE OR PRACTICED EMPLOYMENT/LABOR LAW."

Here is the link to "sign-up" to participate in Ms. Drew's study:
https://fiu.qualtrics.com/SE/?SID=SV_8koUuQcezBBvb4E
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Substantial evidence consists of relevant proof that a reasonable person would accept as adequate to support a conclusion

Substantial evidence consists of relevant proof that a reasonable person would accept as adequate to support a conclusion
Matter of Seltzer v City of Rochester, 2010 NY Slip Op 06846, Decided on October 1, 2010, Appellate Division, Fourth Department

Lawrence M. Seltzer commenced an CPLR Article 78* proceeding in an effort to obtain a court order annulling the determination terminating his employment as a City of Rochester Municipal Parking Coordinator following a disciplinary hearing held pursuant to Civil Service Law §75.

The Appellate Division dismissed his appeal, commenting that the disciplinary determination was supported by “substantial evidence, i.e., ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’”

The court also concluded that, under the circumstances of this case, the penalty of termination of employment does not constitute an abuse of discretion as a matter of law because it is not " so disproportionate to the offense as to be shocking to one's sense of fairness,’" citing Matter of Kelly v Safir, 96 NY2d 32.

* Section 76 of the Civil Service Law provides alternative appeal procedures to challenge a Section 75 disciplinary determination: [1] Appeal to the Civil Service Commission having jurisdiction within 20 days of his or her receiving notice of the determination; or [2] A judicial appeal pursuant to Article 78 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06846.htm
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Duty of fair representation

Duty of fair representation
Runfola and Local 2028, 32 PERB 3028

Peter Runfola filed charges claiming that the Local 2028, International Longshoreman’s Association breached its duty of fair representation when it negotiated a contract layoff provision that “was a material change in the then existing contractual language, and that the recently elected [union officers] negotiated the clause to reward their supporters and punish their opponents, who included Runfola.”

PERB dismissed Runfola’s complaint as untimely, commenting that such a complaint had to be filed within four months of the date on which Runfola knew of the amendment to the collective bargaining agreement.

The contract had been amended in July 1998; Runfola filed his complaint in January 1999, more than six months after the contract had been amended.

PERB rejected Runfola’s argument that the Statute of Limitations to file his charge began to run in October 1998, when he was “actually harmed” because of the application of the amended provision to him and “caused him to lose a position ... he would have retained under the provisions of the prior agreement.”
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Conforming of the arbitration award

Conforming of the arbitration award
Patry v Vill. of Tupper Lake, 262 AD2d 757, Motion for leave to appeal denied, 94 NY2d 753

The Patry decision by the Appellate Division provides an example of a rather rare event: a court providing relief that the award itself neglected to include.

In this instance, the arbitration panel decided that the employer had acted improperly in discharging Patry, but did not provide him with any remedy such as directing his reinstatement. The court corrected this omission.

The case began after Tupper Lake heavy equipment operator Jacques Patry was terminated from his position because he tested positive for marijuana in a random drug test. Patry filed a grievance under the collective bargaining agreement. Ultimately the “board of arbitrators” ruled that the village had discharged him “without proper reason”. The decision, however, did not indicate what remedial action was to be taken. When the village failed to restore him to his former position, Patry filed an Article 75 action to confirm the award together with an Article 78 action to compel the village to reinstate him. The village objected, citing paragraph 7.09 of the contract, which read as follows:

No Board of Arbitrators shall have power or jurisdiction to modify the Board of Trustees’ action. The Board of Arbitrators shall either find that the Board of Trustee’s action was not without proper reason in which event the suspension, demotion or discharge shall be sustained in full; or that the suspension, demotion or discharge was without proper reason.

A Supreme Court judge dismissed the action “because the arbitrators did not direct that petitioner be reinstated to his former position or awarded back pay and the labor contract did not grant them the authority to do so, there was no “award” to confirm”.

The Appellate Division reversed the lower court’s ruling. It pointed out that in the context of the contract, which established a “hierarchy of penalties that may be imposed under varying circumstances,” paragraph 7.09 merely precluded the arbitrators’ modification of a penalty, e.g., reduction of a penalty of discharge to one of suspension, that has been permissibly imposed by the Board.

In other words, if the arbitrators found that the individual was guilty of the disciplinary charges that were brought, they could not change the penalty imposed by the village.

The construction urged by the village “leads to an irreconcilable and absurd result, with the arbitrators granted the authority to declare that a grievant had been wrongfully suspended, demoted or discharged but denied the power to annul the impermissible penalty ....”

The Appellate Division’s conclusion: the arbitrators were authorized to annul the discharge and restore Patry to his former position. Although there was no indication of the reason why the arbitration board failed to do this, the court said the fact that the arbitrators failed to make a complete award does not mean that it could or should not recognize and confirm the award that they did make.

The Appellate Division apparently found it significant that the village did not contest the arbitrators’ finding that petitioner’s discharge was “without proper reason” nor did it provide any legal basis for vacating or modifying the arbitrators’ award (see, CPLR 7511).

The Appellate Division ruled that “on the merits, given our construction of paragraph 7.09 of the labor contract and the arbitrators’ determination that petitioner’s discharge was without proper reason, we conclude that the Board was required to retroactively restore petitioner to his employment, “less any amounts he received from employment or unemployment insurance benefits.”
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