Assistant Attorneys General ruled “policy makers” for the purposes of the First Amendment, Title VII and the ADEA

Assistant Attorneys General ruled “policy makers” for the purposes of the First Amendment, Title VII and the ADEA
Butler v NYS Dept. of Law, CA2, [Appeal from summary judgment in favor of the State, see Butler v. New York State Dep’t of Law, 998 F. Supp. 336]

Who is a policy maker? This was one of the issues before the court when former Assistant Attorney General Barbara B. Butler sued then Attorney General Dennis Vacco, contending that she had been unlawfully fired from her position as a Deputy Bureau Chief.

Was Butler was a policy maker and thus subject to dismissal for reasons of political patronage? The Court concluded that Butler was a policy maker.

In determining whether an individual is a policymaker in accordance with the Elrod [427 US at 367] and Branti [445 US 507] standards, the Second Circuit said it considers whether or not the employee:

(1) is exempt from civil service protection;

(2) has some technical competence or expertise;

(3) controls others;

(4) is authorized to speak in the name of policymakers;

(5) is perceived as a policymaker by the public;

(6) influences government programs;

(7) has contact with elected officials; and

(8) is responsive to partisan politics and political leaders.

The Circuit Court said that as Deputy Bureau Chief, Butler was not protected against a political patronage dismissal because her position fell within the policymaker exception to First Amendment protection.

Further, said the court, Butler was not protected under Title VII because her position came within the statutory exception for an appointee on the policymaking level.

Finally, Butler’s ADEA claim failed because the State’s Eleventh Amendment immunity prevented her from suing the State Department of Law for age discrimination under ADEA.

Make-up examination

Make-up examination
Alves v NYC Dept. of Citywide Administrative Services, Supreme Court, New York County, Justice Weissberg, [Not selected for publication in the Official Reports]

The New York City Department of Citywide Administrative Services [DCAS] held the written test for fire lieutenant on Saturday, September 27, 1997. 3,627 firefighters took the test. Those unable to take the test on the 27th could take a special test if the reason why they could not appear is on an enumerated list, which includes religious observances and military duties.

A special examination was taken by two firefighters who were Sabbath observers on Friday, September 26. On October 8, 1997, a make-up examination was administered to thirteen firefighters who were unable to appear on September 27. The questions on all three tests were the same, but the order in which they were presented was different.

On October 7, 1997, DCAS received an anonymous complaint alleging that a copy of the September 27 examination was seen in a Brooklyn firehouse on the evening of September 26 and that copies of the examination were, after September 27, seen in firehouses throughout the City. The October 8 make-up test was held as scheduled.

The City’s Department of Investigation (DOI) investigated the alleged breach in the integrity of the test. It found that that copies of the September 27 examination were widely available between September 27 and October 8; that many of the firefighters who took the October 8 examination admitted that they had seen a copy of the September 27 examination and discussed it with other firefighters before they took their test. DOI also reported that the test scores for the applicants who took the October 8 examination were higher than the scores for those who took the September 27 test. DOI concluded that the integrity of the October 8 make-up examination had been compromised and recommended that the results of that examination be nullified. DOI also concluded that there was no evidence that the integrity of the September 27 examination had been compromised.

Based on these DOI findings and conclusions, DCAS nullified the results of the October 8 examination. Four of the candidates who took the October 8 make-up test sued, contending that never saw a copy of the September 27 examination or discussed the questions on the examination prior to taking the October 8 make-up exam. They also contended that there was no specific finding that any individual petitioner cheated on the examination or otherwise engaged in fraud or deception.

The decision notes that one applicant, John Spillane, who was on military duty on September 27 was appointed as a provisional Fire Lieutenant on the basis of his test score as part of the settlement of a complaint he filed with the United States Department of Labor.

After properly nullifying the October 8 examination, DCAS decided that a second, separate make-up examination was impracticable because of the time and effort necessary to prepare and administer such a test and only 13 candidates were affected. It decided that the make-up for the October 8 examination would be the next scheduled general test for promotion to Lieutenant which, as petitioners point out, will likely not be conducted until at least the year 2001,

Justice Franklin R. Weissberg was not impressed by this and ruled that [i]n view of the fact that the respondents have conceded that the petitioners did not engage in any acts of misconduct, they should offer a viable and fair alternative thereto, such as they did for Mr. Spillane in agreeing to use his scores from the October 8 examination [to qualify him for provisional promotion] until ... the next scheduled examination....

Representation and indemnification of a public employee being sued

Representation and indemnification of a public employee being sued
Ganzman v Hess, App. Div., 273 A.D.2d 352

Defending a public employee who is being sued as a result of some act or omission in the performance of his or her official duties is an important benefit. When Joel Ganzman, the Deputy Public Administrator of the Office of the Public Administrator of Kings County [Office] was named as a defendant in a Federal discrimination suit, [Gryga v Ganzman, Docket No. 97 Civ 3929, USDC, EDNY], he asked Michael D. Hess, Corporation Counsel of the City of New York and the City of New York, to defend him and, if necessary, indemnify him if he was held liable for damages. Hess rejected Ganzman’s request on the ground that he was not a City employee.

Ganzman sued and won a court order by a State Supreme Court Justice requiring Hess, and the City of New York, to defend and indemnify him should the need arise.

Hess appealed. The Appellate Division affirmed the result, but for a different reason. It said that it is undisputed that the expenses of the Office are funded at least in part by the City. Accordingly, said the court, the Office is an agency of the City as defined by General Municipal Law Section 50-k(1)(a). Since Ganzman holds a position in the Office, he is an employee as defined by GML Section 50-k(1)( e). Conclusion: he is entitled to the defense available to any employee under GML Section 50-k(2).

Casual employment of BOCES board member by a school district

Casual employment of BOCES board member by a school district
Informal Opinions of the Attorney General 2007 - 2

According to an Informal Opinion by the Attorney General, Education Law §1950(9) bars a member of a board of a BOCES from being employed as a per diem substitute by a school district that is one of the component school districts served by the BOCES.

For the full text of the opinion, go to:

http://www.oag.state.ny.us/lawyers/opinions/2007/informal/2007-2.pdf

Determining eligibility for an accidental disability retirement allowance

Determining eligibility for an accidental disability retirement allowance
Matter of McCabe v Hevesi, 38 A.D.3d 1035
Matter of Wise v New York State Comptroller, 38 A.D.3d 1032
Matter of Stack v Board of Trustees of the N. Y. City Fire Dept., Art. I-B pension fund, 38 A.D.3d 562

The McCabe, Wise and Stack decisions consider the question of what constitutes an accident for the purpose of qualifying for accidental disability retirement benefits.

The courts have viewed the term “accident” for the purpose of qualifying for an accidental disability retirement allowance to mean a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” and “the precipitating event must emanate from a risk that is not an inherent element of the applicant's regular employment duties.”

1. In the McCabe case, the applicant, a police officer said that he had injured his back when he stumbled in a stairway while searching for a possible intruder. McCabe said that "I started to walk into the basement and caught [my] right foot on short step landing."* However, McCabe also testified that in the performance of his routine duties over the years, he had encountered thousands of stairways, many of which were substandard or defective. In this instance, the court said it found that substantial evidence in the record supports the retirement system’s determination that McCabe was injured by his own misstep, and did not suffer an accident within the meaning of the Retirement and Social Security Law.

2. Wise worked as a senior court officer and his regular job duties entailed, among other things, escorting criminal defendants in the courtroom and physically restraining unruly individuals. A prisoner suffered “unexpected seizure” while being escorted by Wise, who was injured as a result. The Appellate Division said that neither the “unexpected seizure” nor being injured while restraining a “combative defendant” constitute being injured as the result of an accident within the meaning of the Retirement and Social Security Law.

3. In Stack’s case, a somewhat different issue was addressed. Stack’s application for accidental disability retirement and his application of ordinary disability retirement were both rejected. Although the Appellate Division ruled that medical findings supported the determination of the Medical Board that Stack was not entitled to accidental disability retirement benefits, it found that the Board’s determination concerning Stack’s parallel application for ordinary disability retirement benefits was not supported by anything in the record. Accordingly, the court remanded the case to the Medical Board for it to reconsider its determination with respect to Stack’s application for ordinary disability retirement benefits.

For the full text of these decisions, go to:

McCabe v Hevesi
http://nypublicpersonnellawarchives.blogspot.com/2007/03/accidental-disability-retirement-what.html

Matter of Wise v New York State Comptroller
http://nypublicpersonnellawarchives.blogspot.com/2007/03/injury-involving-risk-that-is-inherent.html

Matter of Stack v Board of Trustees of the N. Y. City Fire Dept
http://nypublicpersonnellawarchives.blogspot.com/2007/03/applications-for-disability-retirement.html

* In his workers' compensation claim he reported that he "tripped [and] fell on [a] faulty interior stairway."

Decisions by the Public Employment Relations Board

Decisions by the Public Employment Relations Board
Summaries of rulings

Managerial positions: Incumbents of positions of Campus-wide Academic Deans at a community college are excluded from the faculty negotiating unit in view of their campus-wide responsibility for supervision and formulating policy notwithstanding the fact that other dean positions such as Dean of Students, Dean of Student Development and Dean of Retention Services are currently in the negotiating unit. [Matter of Administrators Association of Erie Community College, 33 PERB 3023]

Change in terms and conditions of employment: The fact that earlier executive orders did not specifically direct employees to report incidents involving criminal activity such as fraud and corruption under threat of disciplinary action for non-compliance now set out in newly promulgated executive orders does not constitute evidence of a change in the terms and conditions of employment subject to mandatory collective bargaining. [Public Employees Federation v State of New York, 33 PERB 3024]

Payroll deductions: Although a letter ruling by the Internal Revenue Service advised the employer that it had the discretion to withhold income tax from the wages of individuals on workers’ compensation leave or receiving benefit pursuant to Section 207-c of the General Municipal Law bi-weekly and reimburse the employee for such deductions annually or elect not to make such deductions, it was an improper practice for the employer to change its procedure from not making such deductions to making bi-weekly deductions without first negotiating the change with the employee organization even where the claim for such benefits was controverted by the employer since the exercise of discretion is generally subject to a duty to bargain. [Matter of Westchester County Correction Officers Benevolent Association, 33 PERB 3025]

Statute of limitation: The statute of limitations begins to run on the date of the injury, here the date when the union first learned of the change in the disciplinary procedure rather than the date on which discipline against an individual was implemented. [Matter of Local 100 TWU, 33 PERB 3026]

Attaining tenure by estoppel

Attaining tenure by estoppel
Lilley v Mills, App. Div., 274 A.D.2d 644

Robert Lilley was employed by the George Junior Republic Union Free School District to replace the district’s part-time per-diem school psychologist for the 1993-1994 academic year. As Lilley was paid on a per-diem basis, he did not receive any of the fringe benefits, such as health insurance, provided to full-time employees.

The record indicated that Lilley was not obligated to report to work on a daily basis nor was the district required to utilize his services on a daily basis or pay him for days he did not work.

In July 1994, Lilley was given a probationary appointment as a full-time school psychologist. He was terminated effective June 30, 1997. Lilley objected to his termination and appealed to the Commissioner of Education claiming that he had attained tenure by estoppel on the basis of his service as a per-diem substitute school psychologist during the 1993-1994 school year. Lilley later amended his claim, contending simply that he was employed full-time by the district commencing October 1993.

The Commissioner of Education dismissed Lilley’s appeal, holding that he had not attained tenure by estoppel. Lilley filed an Article 78 petition seeking to overturn the Commissioner’s determination.

The Appellate Division, Third Department, commenced its analysis by noting that:

Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term ...,” citing McManus v Hempstead Union Free School District, 87 NY2d 183.

The key to resolving Lilley’s problem: as he had to satisfactorily complete a three-year probationary period to attain tenure, he had the burden of proving that he had acquired tenure by estoppel by showing that he was entitled to probationary service credit for his services during academic 1993-1994.”

The court commented that the Commissioner had indicated that part-time service is generally insufficient to establish tenure by estoppel. After the Commissioner reviewed Lilley’s employment history for academic 1993-1994, he concluded that Lilley failed to meet his burden of proof that he had been employed full-time for this period.

The Appellate Division sustained the Commissioner’s determination, noting the following significant points:

1. The true nature of an individual’s employment status cannot be determined by the label given to it by the District and depends instead on the realities of the position and its accompanying duties.

2. The record showed that the change of Lilley’s status to full time in July 1994 involved more than merely changing the label of the position.

3. During academic 1993-1994 Lilley was paid only for days he actually worked and did not receive the fringe benefits provided to the District’s full-time employees.

4. Lilley was paid a salary and received the additional benefits provided to the district’s full-time professional staff commencing with academic 1994-95.

5. The superintendent stated that Lilley’s duties changed after July 1994 and provided examples such as his beginning to serve as Chair of the Committee on Special Education.

Thus, said the court, the record before the Commissioner contained sufficient evidence to provide a rational basis to support his rejection of Lilley’s appeal.

Citing Catlin v Sobol, 77 NY2d 552, the Appellate Division said that “[i]n such cases the Commissioner’s determination must be upheld unless it is arbitrary and capricious and without rational basis.”

Although Lilley attempted to support his claims by listing the duties contained in the district’s job description for the full-time school psychologist position and contended that he performed those duties during the 1993-1994 school year, he also conceded that his duties intensified after July 1994.

Considering the conclusory nature of Lilley’s answer to the district’s claims and Lilley’s “concession that his duties ‘intensified’, the absence of any independent evidence such as documents or affidavits of disinterested persons with knowledge of the facts to support [Lilley’s] self-serving allegations and the failure to include his claim concerning his 1993-1994 duties in his petition,” the Appellate Division held that there was nothing arbitrary, capricious or irrational in the Commissioner’s rejecting Lilley’s appeal.

Disciplinary action follows failure to report for medical exam

Disciplinary action follows failure to report for medical exam
Santiago v Koehler, 546 NYS2d 625

An appointment was schedule for an employee to be evaluated by the employer's Health Management Division. This apparently was one of a series of such appointments. Earlier appointments that had been scheduled for the employee but he failed to appear for the examination. When the Santiago failed to appear for this, the most recent scheduled appointment, he was served with disciplinary charges alleging misconduct based on his failure to report for the medical examination as scheduled.

Found guilty, Santiago was told that he had a choice as to the penalty to be imposed. He could elect either a five-day suspension without pay or, in the alternative, agree to pay a fine of 300 dollars. Santiago elected the five-day suspension without pay rather than the $300 fine. He then sued to vacate the disciplinary action, asking the court to rescind the penalty he had elected.

The Appellate Division, 1st Department, decided that the disciplinary determination was supported by substantial evidence. This evidence apparently included admissions by Santiago concerning the event. It then said that “the penalty of five days suspension, chosen by [Santiago] from the options adopted by the Commissioner, is not excessive in relation to the repeated infractions here involved.”

Enlarging the probationary period

Enlarging the probationary period
Caruso v Ward, 546 NYS2d 853

The New York City Police Department decided to change the initial probationary period for police officers from eighteen months to two years. The Union challenged the decision and asked the Courts to annul the change.

The Appellate Division sustained the Department’s changing the term of the probationary period for newly appointed police officers, citing a number of reasons for its ruling.

The Court said that the Union:

(1) had failed to show that it had a clear legal right to the relief it sought [reversion to the 18 month probationary period] and

(2) it did not present any evidence of bad faith, illegality or arbitrary action by the Department in extending the maximum period of probation for new appointees to the force.

The Appellate Division then said that “the decision to enlarge the probationary period was rationally related to the goal of more thorough evaluation of [a] new officers’ fitness for duty” and denied the union’s appeal.

Employee’s “informal” comment that he or she “may need FMLA leave” may not be sufficient to trigger FMLA protections

Employee’s “informal” comment that he or she “may need FMLA leave” may not be sufficient to trigger FMLA protections
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2011. 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.

Upon learning that his wife was pregnancy and due in early 2008, Chad Wilson told his supervisor that he might need to take leave to care for his newborn if his mother-in-law was unavailable. Wilson was subsequently terminated for dismissing his supervisor's concerns about Wilson’s failure to follow the chain of command regarding a pay issue.

Wilson sued alleging that his termination was in retaliation for exercising FMLA rights. He argued that he engaged in FMLA-protected activity by requesting leave to care for his child. The FMLA provides that an employee must "provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave" [29 CFR 825.302(c)].

The Fifth Circuit found that Wilson failed to provide adequate notice of the need for FMLA leave. Wilson, the Court observed, " never informed Noble that he intended to take leave, only that he "might" need to take leave and that there was a "possibility" that he would need to take leave." The Court held that these comments were insufficient to make his employer aware that he needed FMLA-qualifying leave.

The Court also found that Wilson failed to notify his employer of the "anticipated timing and duration" of any leave. Wilson conceded that he did not get into any specifics as to who, what, when, or where of the leave. Telling his supervisor that he "might" need to take leave "early in the year after the baby was here" failed to inform the employer of the anticipated timing and duration of the leave, the Court held.

The Court held that Wilson failed to establish that his removal was in retaliation for requesting FMLA leave.

Wilson v. Noble Drilling Service, Inc., 10-20129 (5th Cir. Dec. 23, 2010)

Mr. Bosland Comments: While employees need not invoke the FMLA by name when requesting leave, they must provide their employer with sufficient information to alert the employer that FMLA leave may be needed.

Telling an employer that you "might" or "possibly" may need FMLA leave, even for an FMLA-qualifying reason, is not sufficient. To be a valid request, courts also want more specificity in terms of the timing and duration of the leave. Employees do not invoke the protections of the FMLA by telling your employer that you may need leave at unknown time in the future.

To invoke the FMLA, employees need to provide more specifics, not less, when requesting leave.

Added to NYPPL’s sidebar of Lawblogs

Added to NYPPL’s sidebar of Lawblogs

New York City Employment Lawyer has been added to NYPPL's listing of "Links to Other Useful Web Pages".

Focusing on “Employment Law for Attorneys, Employees, and the General Public” and authored by Josh Bernstein, Esq., the Internet address of this LawBlog is: http://jbernsteinpc.com/blog/

Mr. Bernstein's recent posts include the following:

Employee Tip of the Week: Take Your Personal Property With You

Toyota Whistleblower Slammed With $2.6 Million Dollar Arbitration Verdict For Disclosing Confidential Documents

Employee Tip of the Week: Be Direct, and Be Clear

Employee Tip of the Week: Make a Record

The New York City Human Rights Law’s Canon of Liberal Construction

Duties of the position assigned to employees in a different negotiating unit following the abolishment of the position

Duties of the position assigned to employees in a different negotiating unit following the abolishment of the position
CSEA Orange County Local 836 v PERB, 273 A.D.2d 626

The Local 836 case concerns an employee organization’s right to negotiate the impact of a legislative body’s eliminating a certain position and the duties previously performed by incumbent of the abolished position are to be performed by an employee in another collective bargaining unit.

On December 31, 1994, the Newburgh City Council eliminated positions of animal control officer for budgetary reasons. These positions were in the negotiating unit represented by CSEA Orange County Local 836. The City reassigned the duties being performed by the former incumbents of the abolished positions to uniformed City police officers -- who were in a different collective bargaining unit.

Local 836 filed charges alleging that the City committed an improper employer practice when it assigned the duties previously performed by the animal control officers to non-unit police officers. Ultimately, PERB said that the transfer of the work from the animal control officers to police officers necessarily resulted in a significant change in qualifications and that the propriety of the transfer was therefore to be determined under the balancing test set out in its ruling in Matter of the Niagara Frontier Transportation Authority, 18 PERB 3083.

After applying the Niagara test, PERB held that when weighed against a mere loss of unit work, Newburgh’s managerial concerns clearly prevail and thus the transfer of duties was not a mandatory subject of collective bargaining. Accordingly, Newburgh was not required to negotiate its decision to transfer “unit work” and PERB dismissed the charge. The Appellate Division affirmed PERB’s determination.

The court said that because of the special employment qualifications required of, and possessed by, police officers and firefighters, the substitution of civilian employees for uniformed officers would of itself constitute a substantial change in job qualifications. It necessarily follows that the converse is true and that a substitution of police officers for civilian employees will also involve the requisite significant change.

The Appellate Division ruled that PERB rationally concluded that the transfer of job functions from civilian to uniformed employees effected a significant change in job qualifications without reference to the actual duties performed by the two classes of employees.

As to the balancing test applied by PERB, the court agreed with view expressed by PERB that because the animal control officer positions had been previously eliminated as the result of the City’s legislative action, the loss of those jobs was not a factor that entered into the test.

Accordingly, the loss of the jobs in the unit represented by Local 836 was not a consequence that flowed from the City’s reassignment of the non-emergency animal control duties to the police, it is the action that precipitated the assignment of unit work to non-unit employees.

The court’s conclusion: The loss of jobs under such circumstances cannot be a part of the balancing test to determine whether the City’ s action in transferring the unit work to nonunit employees violated the [Public Employees’ Fair Employment Act (Civil Service Law Article 14) because it did not occur as a result of the transfer of unit duties and thus the impact of this change was not a mandatory subject of collective bargaining.

What is the balancing test scenario used in situations involving the type unilateral transfer of unit work referred to in the Newburgh case?

First there must a determination as to whether the work been performed by unit employees exclusively and, second, a determination as to whether the reassigned tasks substantially similar to those previously performed by unit employees.

If the answer to both of these questions is yes, there has been a violation of Article 14 unless the qualifications for the job have been changed significantly.

If there is no such change in the qualifications for the position, the loss of unit work to the group is sufficient a detriment to support a finding of a violation.

If, however, there has been a significant change in the job qualifications and the change has not been mandated by the appropriate legislative body, then a balancing test is used and the respective interests of the public employer and the unit employees, both individually and collectively, must be weighed against each other.

Unemployment insurance and Section 75 disciplinary finding

Unemployment insurance and Section 75 disciplinary finding
Dimps v NYC Human Resources Administration, 274 A.D.2d 625

Dimps had been found guilty of 12 of 20 specifications of misconduct by an administrative law judge [ALJ] following a disciplinary hearing pursuant to Section 75 of the Civil Service Law.

The ALJ recommended that Dimps be dismissed and HRA adopted the hearing officer’s findings and recommendation regarding the penalty to be imposed. The New York City Civil Service Commission affirmed HRA’s Section 75 determination and the penalty imposed.

Dimps then applied for unemployment insurance benefits, which were denied on the ground that her employment was terminated due to her misconduct. A hearing was scheduled and an Unemployment Insurance Administrative Law Judge allowed Dimps to explain nine of the specifications on which she was found guilty.

HRA objected, contending that the doctrine of collateral estoppel should apply to the findings of fact made at the disciplinary hearing with respect to Dimps’ appeal of her disqualification for unemployment benefits.

Ultimately the ALJ agreed with HRA’s argument and did not consider Dimps’ explanation in making his determination. The ALJ ruled that Dimps was ineligible for unemployment insurance benefits because she had been terminated for misconduct.

The Unemployment Insurance Appeals Board ruled that Shirley Dimps was disqualified for unemployment insurance benefits because she had been terminated for misconduct. Dimps appealed the Board’s decision to the Appellate Division.

Was the application of the doctrine of collateral estoppel appropriate in Dimps’ case before the Unemployment Insurance Appeals Board? The Appellate Division, Third Department, ruled that it was and dismissed Dimps’ appeal.

In the words of the Appellate Division:

... inasmuch as claimant was given a full and fair opportunity to litigate the issue of misconduct at the disciplinary hearing, the ALJ at the unemployment insurance hearing properly accorded collateral estoppel effect to the ensuing factual findings.

The court noted that at the disciplinary hearing, Dimps was represented by counsel, testified on her own behalf, cross-examined the employer’s witnesses and had the opportunity to present and examine relevant evidence.

As an alternative, Dimps argued that the Unemployment Insurance Board’s determination was not supported by substantial evidence. The Appellate Division said that it found to the contrary and that there was substantial evidence supporting the Board’s determination that Dimps committed disqualifying misconduct, i.e., she continuously refused to abide by reasonable directives of her supervisor....

All necessary parties -- i.e. parties that could be affected by the decision -- must be named in an appeal to the Commissioner of Education

All necessary parties -- i.e. parties that could be affected by the decision -- must be named in an appeal to the Commissioner of Education
Appeal of Robert W. Fife, Decisions of the Commissioner of Eduction 15,533

Robert W. Fife held a tenured appointment with the Delaware Valley Central School District. Fife’s tenure area: physical education and health. In 1999 Delaware merged with the Jeffersonville-Youngsville and Narrowsburg School Districts to form the Sullivan West Central School District.

As a result of the merger, a .5 full-time equivalent (“FTE”) position in the physical education tenure area and a .5 FTE position in the health tenure area were eliminated. Fife was told that as he was least senior person in those tenure areas, he would be terminated effective June 30, 2005, and that his name would be placed on a preferred eligible list.

Following this, Fife was appointed to a .4 FTE physical education position.

Fife challenged the district’s determination regarding his seniority, contending that while he mathematically devoted less than 40% of his total time providing health instruction during five of his ten years of employment, this was because he taught more classes than the number of periods that was usual and customary. He also claimed that the percentage of his time spent providing health instruction would increase if the time he spent teaching driver education were viewed as a co-curricular activity.

The Commissioner dismissed Fife’s appeal because of a procedural defect – Fife’s failure to “join” a necessary party in his appeal.* A necessary party is one whose rights would be adversely affected by a determination of an appeal in favor of an appellant and must be joined as such.

Fife argued that he had no way of knowing the party or parties who would be adversely affected by a decision in his favor. However, there was only one other teacher employed by the District who held tenure in the area of health. Since Fife’s request for reinstatement, if successful, could affect the employment status of that teacher, the Commissioner ruled that the other teacher should have been joined as a necessary party to Fife’s appeal.

Notwithstanding this technical defect, the Commissioner commented that Fife’s appeal would have been dismissed on the merits had it not been dismissed on procedural grounds.

The Commissioner explained that seniority means length of service in a designated tenure area, rather than length of service in the district. Further, such service need not have been consecutive but “shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.”

As used in Part 30 of the Commissioner’s regulations, the phrase “substantial portion” means 40 percent or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (8 NYCRR §30.1[g]).

As Fife conceded that he devoted less than 40 percent of his total time providing health instruction during five of his ten years of employment he did not meet this standard.

Further, said the Commissioner, although Fife contended that failed to meet the “40 percent” because he taught more classes than the number of periods that was usual and customary, he did not indicated any legal basis for earning seniority credit in health during the years in which health instruction did not constitute a substantial portion of his time.

As to Fife’s attempt to have his duties teaching driver education as an assigned period during his regular work schedule, the Commissioner ruled that this does not support his contention that this instruction should be viewed as a co-curricular activity.

The Commissioner said that the District’s determination the Fife had less seniority than the teacher it had retained was neither arbitrary nor capricious and dismissed Fife’s appeal.

* Joining a necessary party requires that the individual be clearly named as a respondent in the caption of the appeal and served with a copy of the notice of petition and the petition itself in order to inform the individual that he or she should respond to the petition and enter a defense.

One party to a collective bargaining agreement cannot compel arbitration of a dispute unless the agreement explicitly so provides

One party to a collective bargaining agreement cannot compel arbitration of a dispute unless the agreement explicitly so provides
Matter of Onondaga Community Coll. v Onondaga Community Coll. Fedn. of Teachers & Adm'rs Aft, Local 1845, 2010 NY Slip Op 09835, Appellate Division, Fourth Department

It is “black letter law” that "A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal' agreement to arbitrate."

Citing God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, the Appellate Division ruled that Supreme Court was correct when it granted Onondaga Community College’s Article 75 motion to stay the arbitration of a grievance filed by an employee whose employment was terminated during his probationary period.

Here, said the court, the employee, a software systems administrator, was terminated within three months after he was hired, “while he undisputedly was a probationary employee.” As the controlling collective bargaining agreement [CBA], explained the Appellate Division, “explicitly excludes the termination of employment of probationary administrators” from the grievance procedures set out in the CBA, including the right to arbitration, Supreme Court correctly granted the College’s motion to stay the arbitration.*

The Appellate Division rejected the Federations characterization of the grievance as “one challenging [the College’s] failure to evaluate the employee in question after nine months pursuant to Article IV of the CBA….”

In the words of the court, “The heart of this dispute is the termination of employment, and any failure by [Onondaga Community College] to comply with the evaluation procedures … is irrelevant in view of the CBA provision rendering arbitration unavailable to probationary administrators who are terminated.”

* The collective bargaining agreement provided that administrators "serving in a probationary period other than a probationary period attendant to and resulting from promotions shall not have [any] right, relief, or access to contest disciplinary action, including dismissal from employment, under the grievance procedure contained herein."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09835.htm