Disciplinary procedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules

Disciplinary procedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules
Gordon v Town of Queensbury, App. Div., 256 AD2d 784

Michael Gordon was terminated from his position as a motor equipment operator by the Town of Queensbury before he completed his probationary period. He challenged the town’s action, contending that the town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission and thus his termination was made “in bad faith.”

Rule XIV.5 of the Warren County Civil Service Commission requires that “a probationer whose services are to be terminated for unsatisfactory performance receive written notice of such termination at least one week prior thereto.”

Here, however, the Appellate Division decided that “the disciplinary provisions” set out in a collective bargaining agreement negotiated pursuant to the Taylor Law trumped the Commission’s rules. In its analysis of the case, the court pointed out that:

1. A county civil service commission has the authority to promulgate rules for the “conditions and extent of probationary service” which [when filed] have the force and effect of law.

2. “A violation of such rules may be sufficient to trigger a trial on the issue of bad faith.”

3. The former employee “bears the burden of presenting competent proof that his or her dismissal was made in bad faith.”

But, the court said, “it is equally true ... that the disciplinary procedures set forth in a collective bargaining agreement may be substituted for statutory procedures, in which case an employee is ‘entitled to no more procedural protections than those expressly afforded him [or her] under the collective bargaining agreement.”

The Appellate Division said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining agent, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.

Also noted in the opinion was the fact that “it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons absent proof that such discharge was for a constitutionally impermissible reason or in violation of statutory, decisional law, or in bad faith.

Since Gordon “failed to tender proof sufficient to raise a triable issue of fact in this regard,” the court decided that no hearing was required concerning the Town’s motivation in discharging him from the position and dismissed the appeal.
NYPPL

Police officer's termination for stealing money seized at a police raid ruled an appropriate penalty under the circumstances

Police officer's termination for stealing money seized at a police raid ruled an appropriate penalty under the circumstances
Renna v Safir, App. Div., 256 AD2d 219

In Renna v Safir the Appellate Division again applied the Pell standard – did the penalty imposed shock the conscience of the court.

Mary Renna was dismissed from her position as a New York City police officer after being found guilty of stealing money seized at an illegal gambling location during a police raid.

The court said that Renna’s guilt was supported by substantial evidence, including:

1. The images on a “videotape surveillance of the location,"

2. Renna's failure to report the allegations of corruption made against her in integrity tests conducted by Internal Affairs, and

3. Renna's admittedly false statements concerning the integrity test given in the departmental interview.”
NYPPL

Inability to perform essential duties trumps violation of American with Disabilities Act claims

Inability to perform essential duties trumps violation of American with Disabilities Act claims
Kees v Wallenstein, CA 9, 161 F.3d 1196

A number of correction officers in the State of Washington had been placed on light duty as a result of injuries sustained in the line of duty or as the result of non-work related illness. Their respective physicians had indicated that they should not have direct contact with prison inmates to avoid the possibility of further injury.

When the officers were removed from their positions they sued the Kings County Department of Adult Detention [Arthur Wallenstein, director], contending that their termination violated the Americans with Disabilities Act [ADA], 42 USC. Sections 12101-12213. The State of Washington, representing the county, argued that the officers involved were not “qualified individuals under the ADA” because their inability to have direct inmate contact prevented them from performing the essential functions of the corrections officer job.

The correction officers had informed Wallenstein that their conditions were permanent, and that no reasonable accommodation would allow them to have direct contact with inmates. After determining that direct inmate contact is an essential function of the corrections officer position, OHRM and Wallenstein separated plaintiffs from their jobs as corrections officers. The county had made a settlement offer -- each officer was offered a DAD non-commissioned, support position such as office technician, jail receptionist, or jail aide, at the full corrections officer salary. These employment offers were rejected because the positions required direct inmate contact.

The Circuit Court of Appeals said that in order to prevail on their claim, plaintiffs must establish that:

1. They are disabled within the meaning of the ADA;

2. They are qualified, with or without reasonable accommodation, to perform the essential functions of the job; and

3. The county terminated them because of their disability.

The Ninth U.S. Circuit Court of Appeals in San Francisco sustained the district court’s finding that the officers “are not qualified individuals with disabilities under the ADA.” It said that “no accommodation would allow them to have direct inmate contact, an essential function of the corrections officer position” as “their ability to restrain inmates during an emergency is critical to jail security.”

Another factor considered by the Circuit Court: the controlling collective bargaining agreement indicated that corrections officers are expected to rotate among several positions, most of which involve inmate contact.
NYPPL

Assurance of continued employment disqualifies educator for unemployment insurance benefits

Assurance of continued employment disqualifies educator for unemployment insurance benefits
Romano v Buffalo Bd. of Ed., App. Div., 256 AD2d 845
Cannizzaro v Buffalo Bd. of Ed., App. Div., 256 AD2d 846, Motion to appeal denied, 93 NY2d 815
Aljandari v Buffalo Bd. of Ed., App. Div., 245 AD2d 647
Dixon v Buffalo Bd. of Ed., App. Div., 256 AD2d 1046

A temporary teacher’s eligibility for unemployment insurance benefits upon termination of his or her temporary employment depends on whether or not he or she has been given “a reasonable assurance of continued employment” within the meaning of Section 590.10 of the Labor Law.

The following cases consider a number of different procedural and substantive issues involving claims for such benefits filed by temporary teachers. The basic lesson: employers will be required to provide substantial evidence of such assurances of continued employment to survive administrative and judicial scrutiny of objections to the payment of such benefits.

The Romano Case

Belmaries Romano and a number of other temporary teachers employed by the Buffalo Board of Education during academic 1994-95 were each sent a form letter dated June 9, 1995 indicating that they would be reemployed by the school board during the 1995-96 academic year.

Although initially unemployment insurance claims were denied on the basis of the form letter, an administrative law judge [ALJ] overturned that determination. The Unemployment Insurance Board [Board] affirmed the ALJ’s decision and then denied the school district’s application seeking to reopen the matter.

Although the Appellate Division recognized that “the decision to grant an application to reopen lies within the sound discretion of the Board,” it decided that the Board had abused its discretion when it rejected the school district’s application.

The court said that the school district’s motion for reopening and reconsideration of the issue of whether Romano and the other teachers “received a reasonable assurance of continued employment” as a result of the school district’s sending them a form letter should have been granted by the Board. The matter was remanded to the Board for further action.

The Cannizzaro and Aljandari cases

Both Eva Cannizzaro and Abdulla Aljandari were temporary teachers employed by the Buffalo City School District during the 1994-95 academic year. In June 1995, the school district sent each of them a letter “advising them that they would be reemployed during the then-upcoming 1995-1996 academic year.”

Both were denied unemployment insurance benefits on the grounds that they had received a reasonable notice of continued employment within the meaning of Section 590.10 at the end of the 1994-95 academic year. The Unemployment Insurance Appeals Board granted their applications to reopen and reconsider these denials of benefits.

The Board granted their applications and after reconsidering the matter, adhered to its prior rulings that both Cannizzaro and Aljandari had received reasonable assurances of continued employment.

The Appellate Division rejected their appeals, holding that the record indicated that the Board’s determinations regarding both teachers were supported by substantial evidence.

The Dixon decision

Amber Dixon and 19 other Buffalo City School District temporary teachers applied for unemployment insurance benefits at the end of the 1994-95 academic year. The Board ruled that the 20 teachers had not been provided with “a reasonable assurance of continued employment” for the 1995-96 academic year and approved their applications for unemployment insurance benefits.

The school district appealed, only to have the Appellate Division affirm the Board’s determinations. The court said that with respect to one teacher, Maria Orta, the district “admittedly failed to offer any proof [of such assurance] at the administrative hearing.”

As to the remaining 19 claimants, the Appellate Division set out the following guideline with respect to its considering Board determinations:

It is well settled that the issue of whether a claimant received a reasonable assurance of employment is a factual question for the Board to resolve and such determination, if supported by substantial evidence, will not be disturbed, even if other evidence in the record would support a contrary conclusion.

The Appellate Division said that although the teachers had been sent letters in June 1995 advising them that their services would be continued for the 1995-96 academic year “the Board concluded, in light of the proof adduced at the administrative hearings regarding the respective claimant’s particular employment situations, that the employer did not in fact provide claimants with a reasonable assurance of continued employment.”

The decision notes that 10 claimants worked in mathematics programs and the Board’s findings were supported by “extensive testimony regarding ... planned staff cuts for these departments.” As to the remaining teachers, the court said “it could not say that the Board erred in concluding that the employer failed to provide competent testimony regarding hiring lists and practices for those [other] areas [and thus] failed to demonstrate that it had provided these claimants with a reasonable assurance of employment for the 1995-1996 academic year.”
NYPPL

Designation of a beneficiary to receive retirement system death benefits

Designation of a beneficiary to receive retirement system death benefits
Estate of Kraut v City of New York, NYS Supreme Court, [not officially reported]

The Kraut case demonstrates the critical importance of a member actually filing a designation of beneficiary form with a public retirement system.

Although the New York City Employees’ Retirement System’s [NYCERS] records indicated that Kraut’s son Steven was his beneficiary, Gloria A. Djaha contended that NYCERS should have paid Kraut’s $268,000 [after taxes] death benefit to her.

Her argument: because Kraut had written “[t]he beneficiary whom I would nominate to receive the benefit payable after my death ... is my Financee [sic] ... is Gloria Anne Djaha on his retirement application form.”

But since Kraut never filed a formal Designation of Beneficiary form naming Djaha as his beneficiary, the court ruled that the son was Kraut’s lawful beneficiary.

Verizon FMLA settlement may exceed $6 million

Verizon FMLA settlement may exceed $6 million
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Verizon Communications, Inc. settled a class action lawsuit with the California Department of Fair Employment and Housing for up to $6,011,190.00. The suit alleged that between 2007 and 2010 Verizon denied or failed to timely approve class members' requests for leave for their own serious health condition, to care for a family member with a serious health condition, or to bond with a child.

The suit was brought under California's version of the FMLA, which is very similar to the federal Family and Medical Leave Act.

Verizon also agreed to review and revise its leave policies and procedures, and to train all California managers, supervisors and human resource personnel on legally compliant CFMLA procedures. Verizon did not admit to any wrongdoing in the settlement.

http://www.centralvalleybusinesstimes.com/templates/print.cfm?ID=16984

Mr. Bosland Comments: The settlement undoubtedly does not include Verizon's time and expense in defending the suit, which likely added another million dollars to the total tab.
Like the California FMLA, the federal FMLA allows aggrieved employees to file class action lawsuits for violation of their FMLA rights. Employers would be well-advised to continually monitor their leave policies to ensure they remain in compliance with ever-changing FMLA laws. As evidenced by Verizon, failure to do so may result in very expensive and time consuming litigation.

Collective bargaining agreement requires village to reimburse its retirees participating in its health insurance plan their Medicare premiums

Collective bargaining agreement requires village to reimburse its retirees participating in its health insurance plan their Medicare premiums
Millington v Village of S. Glens Falls, 30 Misc 3d 405

Marvin Millington and the class he represents are retired employees of Village of South Glens Falls and prior to their respective retirements, were members of a collective bargaining unit represented by the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO.

Effective April 1, 2007 the Village terminated its practice of reimbursing all qualifying Village retirees the cost of their Medicaid Part B premium. Millington, contending that the Village’s action violated the collective bargaining agreements between the Village and CSEA, sued seeking a court order directing the Village reimburse all eligible retirees for such premiums in full.

The Village, on the other hand, contended that it is required to pay either a retiree's medical health insurance premium or Medicare Part B premium, but not both and that it neither violated the law nor the collective bargaining agreement when it terminated its prior practice of paying both premiums.

The Village's private medical insurance plan, Empire Blue Cross, requires every participant in the plan at age 65 to sign up for Medicare Part B as a condition to continued coverage. The Village directly paid the Empire Blue Cross premium while the Medicare Part B premium was deducted from the retiree's Social Security benefit and then the Village reimbursed the employee for that premium.*

Although the Village, said the court, was not required to provide health insurance benefits to a retired employee absent an enforceable contractual obligation to do so, here Judge Nolan said “the salient issue is whether the word "or" in the collective bargaining agreements supports, as a matter of law, the Village's interpretation.” He found that it did not, noting that “While the efforts of the Village to reduce costs are praiseworthy, its interpretation of the word "or" in its disjunctive sense does not square with the rest of the language of the most recent contract in force since 1995.”

The court found that when the medical insurance provisions in the agreements are read as a whole, the retirees were contractually entitled to receive continued coverage under the Village's medical insurance plan with the Village to pay 100% of the qualifying retiree's medical insurance premiums. Accordingly, said Judge Nolan, the Village was responsible to pay 100% of the cost of health insurance for any and all retired Village employees hired before June 1, 1995 including such retirees' Medicare Part B premium.

Further, said the court, Millington and all members of the class he represents were to be reimbursed by the Village “for any and all Medicare Part B premiums which they have individually paid since April 1, 2007, with statutory interest….”

* See Civil Service Law §167-a, reimbursement for Medicare premium charges, with respect to political subdivisions of the State that are “participating employers” in the New York State Health Insurance Program [NYSHIP].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20470.htm
NYPPL

Termination pay and other compensation paid in anticipation of an employee’s retirement excluded in determining the individual’s final average salary

Termination pay and other compensation paid in anticipation of an employee’s retirement excluded in determining the individual’s final average salary
Matter of Thompson v New York State Teachers' Retirement Sys., 2010 NY Slip Op 08670, November 24, 2010, Appellate Division, Third Department

James R. Thompson was employed as a principal in the LeRoy Central School District. In accordance with the relevant collective bargaining agreement between the school district and the LeRoy Administrators' Association, Thompson was to receive 3.5% annual pay increases through the 2005-2006 school year.

The CBA also offered a retirement incentive wherein an administrator who retired immediately after becoming eligible to do so without penalty would receive a lump-sum payment of $20,750.

Although Thompson would have qualified for the incentive had he retired during the 2004-2005 school year, continued in his position. However, the school district and association executed a memorandum of understanding in 2005 that granted large annual raises to Thompson and another administrator nearing retirement age in the 2005-2006 and 2006-2007 school years.

When Thompson retired in 2007 retirement, the New York State Teachers’ Retirement System excluded his 2005-2006 and 2006-2007 salary increases when calculating his retirement benefit. Thompson sued but Supreme Court dismissed his petition.

The Appellate Division affirmed Supreme Court’s ruling, holding that NYSTRS had “appropriately calculated his final average salary using ‘the average regular compensation earned . . . during the three years of actual service immediately preceding his date of retirement.’”

The court explained that in order to prevent the artificial inflation of a member’s final average salary in determining the individual’s retirement allowance, Education Law §501 [11] [b], (see also 21 NYCRR 5001.1 [d]; 5003.1 [a]) requires NYSTRS to exclude any form of termination pay or compensation otherwise paid in anticipation of retirement.

As the 2005 memorandum of understanding stated that it was intended to "provide administrators with an incentive to continue [working] beyond retirement eligibility," and granted exceptional salary increases to Thompson [and other school administrators], the Appellate Division held that NYSTRS “rationally concluded from the above evidence that the disproportionate increases in his salary were made in anticipation of retirement.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08670.htm
NYPPL