Statute of limitations - duty of fair representation

Statute of limitations - duty of fair representation
Matter of Mankowski, 33 PERB 3032

Daniel M. Mankowski charged that the Public Employees Federation [PEF] violated it duty of fair representation when it failed to represent him in certain grievances he filed against his former employer, the State of New York.

PERB affirmed its administrative law judge’s dismissal of Mankowski’s petition as untimely, noting that he had filed it more than four months after his last contact with PEF.

Determining the minimum period of probation

Determining the minimum period of probation
Challandes v Shew, 275 A.D.2d 369


In most cases a permanent appointment to a position in the classified service is subject to a probationary period. Typically the probationary period is set in terms of a minimum period and a maximum period.*

Also, if a probationer enters military duty within the meaning of Section 243 of the Military Law, the time of his or her absence shall be credited as satisfactory service during such probationary term.

The basic rule: unless otherwise provided by a collective bargaining agreement, a probationer may be dismissed at any time, for any reason [other than for an unlawful or discriminatory purpose], or for no reason, after completing his or her minimum probationary period and prior to the end of his or her maximum period of probation.

In other words, a probationary employee may be terminated without a statement of any reason for the termination and without a per-termination hearing, provided the dismissal (1) was not made in bad faith; (2) did not constitute a violation of statutory or decisional law; and (3) was not based on any unconstitutional or illegal reasons.

If the appointing authority wishes to dismiss a probationer before he or she completes his or her minimum probationary period** formal disciplinary action must be initiated. The decision by the Appellate Division in the Challandes case demonstrates this.

The Village of Ossining appointed Joyce Challandes as a permanent Data Entry Operator, subject to her satisfactorily completing her probationary period. A few days later the Village Manager revoked the appointment.

Challandes sued, claiming that her termination was unlawful. A State Supreme Court justice agreed and directed Ossining to reinstate her to the position with all back salary and the other benefits that she would have received had her appointment not been revoked.

The Village appealed, only to have the lower court’s determination affirmed by the Appellate Division.

Under Westchester County’s Civil Service Rule 11.1(a)(1), said the court, Challandes had to serve a minimum of 12 weeks before she could be removed at the discretion of the appointing authority. Any earlier termination would have to be based on her having to be found guilty of charges of incompetence or misconduct pursuant to Civil Service Law Section 75. As Challandes was not served with disciplinary charges and no Section 75 hearing was conducted, the court ruled that Challandes’ removal was unlawful.

It is well settled that if a probationary employee is continued in service beyond the last day of the maximum probationary period and was not given a timely notice that he or she was to terminated at the end the probationary period or that his or her probationary period has been extended beyond the maximum period, the employee becomes tenured in the position and thereafter may only be removed for cause after notice and hearing. This is usually referred to as attaining “tenure by estoppel.”

Although tenure by estoppel is most frequently encounter in connection with claims of tenure advanced by probationary teachers who have been terminated, it is possible for employees holding positions in the competitive class to attain tenure by estoppel.

For example, if a provisional employee in a competitive class position becomes eligible for permanent appointment to the position and he or she is continued in the position as a provisional employee, he or she is afforded permanent appointment to the position. The leading case on this point: Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611.

Suppose, however, a provision employee is given his or her notice of termination on the last day of the employee’s probationary period and the employee is continued on the payroll beyond the last day his or her probationary period. This, courts have ruled, constitutes a timely notice of termination as the last day of service need not coincide with the last day of the probationary period.

As the Appellate Division held in Mendez v Valenti, 101 AD2d 612, so long as the termination is effective within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.

Stated another way, the appointing authority has until the last day of the individual’s probationary period to decide whether to retain the employee, extend the employee’s probationary period, or to terminate the employee from his or her position. Although the effective of the employee’s removal from the payroll may occur after this date, the required notice of the termination must be delivered to the employee before the end of his or her probationary period.

* An example of a permanent appointment in the classified service that is not subject to a probationary period: reinstatement from a preferred list. However, an individual who was laid off before completing his or her probationary period is required to complete his or her term of probation upon reinstatement from the preferred list.

** If no minimum probationary period is specified and the appointment is simply made subject to the satisfactory completion of the probationary period the only window of opportunity for termination without initiating disciplinary action occurs at the end of the probationary period.

Applicant rejected after being found overqualified for appointment to the position

Applicant rejected after being found overqualified for appointment to the position
City of New London v Harrigan, CA2*

May an individual be so overqualified for the position so as to justify his or her being rejected for an appointment to the title? This was the issue raised in the Harrigan, a case decided by the US Circuit Court of Appeals, Second Circuit on August 23, 2000.

In March 1996 Robert Jordan and some 500 other candidates for appointment as police officers with various municipal police departments in Connecticut were screened using the Wonderlic Personnel Test and Scholastic Level Exam [WPT]. The test is used to measure cognitive ability.

Recommended scores for various professions are listed in the WPT manual and it notes that overqualified candidates may soon become bored with unchallenging work and quit, and that [s]imply hiring the highest scoring employee can be self-defeating. Jordan scored a 33 on the WPT, above the median for any listed occupation, and well over the normative median of 21 suggested for a police patrol officer.

Jordan then learned that he would not be interviewed by the City of New London because he didn’t fit the profile. New London explained that Jordan had scored a 33 on the WPT, and that to prevent frequent job turnover caused by hiring overqualified applicants New London only interviewed candidates who scored between 20 and 27.

Jordan sued, contending that the City had denied him equal protection in violation of the Fourteenth Amendment and Article 4, Section 20, of the Connecticut Constitution.

A federal district court judge granted the City’s motion for summary judgment. The Second Circuit affirmed the lower court’s ruling, concluding that:

New London’s use of an upper cut did not violate the equal protection clause since [A] statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification ... concluding that even absent a strong proven statistical correlation between high scores on the Wonderlic test and turnover resulting from lack of job satisfaction, it is enough that the city believed - on the basis of material prepared by the test maker and a letter along similar lines sent by the LEC - that there was such a connection.

* This is an unpublished opinion. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007.

Videotape used in disciplinary hearing to rebut employee’s testimony

Videotape used in disciplinary hearing to rebut employee’s testimony
NYC Department of Corrections v Saint-Phard, OATH Index #172/11

OATH Administrative Law Judge Faye Lewis found that Stanley Saint-Phard, a New York City correction officer, used impermissible force by dispersing a chemical agent in an inmate's face and placing him in a chokehold.

Saint-Phard contended that the use of such force was justified because the inmate made an aggressive motion towards him after disobeying an order to return to his cell.

A videotape introduced into evidence, however, showed that before Saint-Phard deployed the spray, the inmate had turned around and placed his hands behind his back. Further, the video showed that the officer was less than three feet from the inmate when he sprayed him, in violation of a directive prohibiting the use of the spray from close range.

ALJ Lewis also found that Saint-Phard used an impermissible chokehold on the inmate during the ensuing takedown of the inmate. A 60-day suspension was the recommended penalty.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-172.pdf

Dissatisfaction with an employer's drug testing procedure is not “good cause” for resigning for the purposes of claiming unemployment benefits

Dissatisfaction with an employer's drug testing procedure is not “good cause” for resigning for the purposes of claiming unemployment benefits
Matter of French v Town of Lyndon, 2010 NY Slip Op 09451, Decided on December 23, 2010, Appellate Division, Third Department

Kevin M. French, a driver/operator for the Town of Lyndon. He advised Lyndon that he believed that drug testing of drivers was being performed incorrectly by the company Lyndon was then using to perform the tests. This led to Lyndon having the tests administered by a different company.

Sometime later French overheard a Town official telling his immediate supervisor that he was scheduled for a random drug test. French failed to report for work the next day and when contacted, said that “he had quit and did not wish to discuss the matter further.”

French filed for unemployment insurance benefit. The State Department of Labor issued an initial determination disqualifying him for benefits after finding that he voluntarily separated from employment without good cause.

The Appellate Division affirmed the Department’s determination, holding that “Whether a claimant has voluntarily separated from employment without good cause is an issue of fact to be resolved by the Board, and its decision will not be disturbed when supported by substantial evidence.”

As to “good cause,” the court noted that “Dissatisfaction with an employer's method of doing business does not constitute good cause for leaving employment, particularly where the employee did not make a reasonable attempt to protect employment by notifying the employer about his or her concerns.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09451.htm

Concerning the employee’s duty to mitigate damages following his or her termination

Concerning the employee’s duty to mitigate damages following his or her termination
Rongiger v McCall, USDC, SDNY, [unpublished]*

The Rongiger case discusses a somewhat infrequently encountered aspect in litigation involving alleged violations of an employees civil rights: the duty of a dismissed employee to mitigate damages and the proof an employer must produce to show that the employee failed to mitigate, or attempt to mitigate, his or her damages following the termination.

George P. Rongiger sued then State Comptroller H. Carl McCall for damages, claiming that McCall had terminated him in retaliation for his exercising his right to free speech in violation of his civil rights. One of the significant major issues in this litigation concerned the question an individual’s duty to mitigate damages.

Rongiger, who had been serving in the Office of the State Deputy Comptroller for the City of New York, a division of the Office of the State Comptroller, alleged that he was terminated after making politically embarrassing statements in deposition testimony concerning correspondence between McCall and then-Mayor David Dinkins in connection with New York City’s efforts to prevent a downgrading of its bond rating.

Did Rongiger have a duty to mitigate damages by seeking substitute employment following his dismissal? In a word, yes! As Federal District Court Justice Sweet noted, citing Dailey v Societe Generale, 108 F.3d 451, an employee who has been subject to discriminatory discharge is required to mitigate his damages.

In Greenway v Buffalo Hilton Hotel, 143 F.3d 47, the Second Circuit explained that this duty means that the discharged employee ‘must use reasonable diligence in finding other suitable employment,’ which need not be comparable to [his] previous positions.

Since the employer charged with discrimination is required to prove any failure on the part of the employee to mitigate damages, McCall retained Dr. Charles L. Sodikoff as an expert on the issue of mitigation and asked him to prepare a report as to his findings.

Sodikoff’s report set out his opinion concerning the length of time it should have taken Rongiger to find a comparably paying job or to build a profitable consulting practice, and the reasonableness of Rongiger’s job search.

Sodikoff concluded that Rongiger should have obtained comparable work within six to ten months of his termination and that he should have built a consulting practice sufficient to replace his compensation in 1994 within two years of his termination. Rongiger challenged the admission of Sodikoff’s report.

After noting that such expert testimony was relevant, Justice Sweet discussed the methods used by Sodikoff in preparing his report and his conclusion. Based on his evaluation of the procedures used by Sodikoff Justice Sweet granted part of Rongiger’s motion to exclude expert testimony.

In contrast, there is no duty on the part of individual who has been terminated after being found guilty following disciplinary action taken pursuant to Section 75 of the Civil Service Law to mitigate his or her damages.

Civil Service Law Sections 76 and 77, which, respectively, deal with reinstatement by a Civil Service Commission or a court following a successful appeal of as Section 75 dismissal and the annulment of the termination, provide that an employee who is reinstated is to receive the salary or compensation he or she would have been entitled by law to have received in his or her position for the period of removal including any prior period of suspension without pay, less the amount of any unemployment insurance benefits he may have received during such period.*

Thus mitigation is not a factor as even if the individual obtains employment after being discharged, any monies earned thereby would not be considered in determining the amount of compensation to be paid as back salary upon reinstatement -- only unemployment insurance benefits are to be considered in determining the back salary due upon reinstatement.

* This is an unpublished opinion. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007.

** Sections 76 and 77 of the Civil Service Law originally provided for an adjustment in consideration of earnings received from other sources, thereby implying a duty to mitigate damages. Chapter 710 of the Law of 1984 deleted the phrase compensation which he may have earned in any other employment or occupation.... from the law.