At-will employee’s claims of wrongful termination and defamation rejected by court

At-will employee’s claims of wrongful termination and defamation rejected by court
DiLacio v New York City Dist. Council of United Bhd. of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department

George DiLacio, Jr., sued the United Brotherhood alleging “wrongful termination of employment and defamation” when it included the phrase “severe dereliction of duty” in the letter it sent to him terminating his employment.

The Appellate Division rejected DiLacio’s allegations, noting that because he was “an employee at will,” his argument that the Brotherhood violated its duty to terminate his employment "only in good faith and with fair dealing" failed to state a valid cause of action under New York law.

Under New York law, said the court, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired."

The Appellate Division also rejected DiLacio’s claim of defamation, explaining that although the letter advising him of his termination contained the phrase "severe dereliction of duty," the letter had not “been published” to anyone other than DiLacio himself.

NYPPL Comments: In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.

As the court found that that there was no “contemporaneous public announcement” of the Brotherhood's statement, presumably DiLacio did not have a right to demand a “name-clearing hearing.” [See, also, Sassaman v Brant, 70 AD3d 1026, a lawsuit triggered by an employee's complaint to a superior concerning a co-worker’s conduct, summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2010/03/employees-memorandum-to-her-superior.html ].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00175.htm

Federal Court sustains employer application for employee’s involuntary retirement for disability

Federal Court sustains employer application for employee’s involuntary retirement for disability
Campbell v City of New York, USDC, SDNY

Jonathan Campbell, claiming that the City of New York deprived him of liberty and property without due process of law in violation of his Fourteenth Amendment rights and his civil rights under 42 USC 1983 when it found him mentally incapacitated and involuntarily retiring him from his position as a New York City Transit Authority [NYCTA] police officer, sued the City and the New York City Employees’ Retirement System.

Campbell’s personnel file revealed that during his employment, disciplinary charges were filed against him about a dozen times alleging misconduct such as insubordination, taking unauthorized leave, reporting late for duty, using ethnic slurs, and failing to appear for hearings.

Claiming he was suffering from stress and emotional problems, Campbell requested and was granted multiple medical leaves. He was admitted to the Hillside Hospital’s psychiatric division and his private psychotherapist diagnosed him as having an Impulsive Behavior Personality Disorder.

Ultimately NYCTA filed an application on behalf of Campbell seeking his involuntary retirement due to mental incapacity. NYCTA cited Campbell’s psychotherapist’s diagnosis of Impulsive Behavior Personality Disorder and an NYCTA doctor’s evaluation that such disorder required a permanent restricted work assignment.

The decision sets out the due process procedures to be followed once an employer files an application for involuntary retirement on behalf of an employee as follows:

1. The employee is entitled to all departmental files that will be considered by the Medical Board in reviewing his case.

2. The employee may supplement these records with written argument or additional medical or other evidence if he or she so desires.

3. The employee is to be interviewed by the Medical Board privately and the Board may refer the individual to a psychiatrist, psychologist or other medical specialists for evaluation.

4. The Medical Board is to prepare a written report that explains findings and the reasons supporting such findings. If the Board finds the employee to be mentally incapacitated for the performance of duty and ought to be retired, the Board will recommend his or her involuntary retirement.

5. If the Medical Board recommends approval of the retirement application by the head of the agency, the member, his counsel or his union representative may appear before the Retirement System’s Board of Trustees and present arguments on the propriety of the Medical Board’s recommendation.

6. The Board of Trustees is to independently consider the Medical Board’s recommendation and uphold this recommendation if it concurs with the Medical Board’s findings or it may remand the case to the Medical Board if it finds procedural irregularities, if new evidence supports reconsideration, or if the recommendation is not supported by competent evidence.

7. If the Board of Trustees votes for involuntary retirement, the member may seek review in an Article 78 proceeding pursuant to New York’s Civil Practice Law and Rules.

8. If the individual is involuntarily retired, he or she may seek reinstatement one year following his retirement through procedures similar to those described in Steps 1-7 above.

In Campbell’s case, the Medical Board considered NYCTA’s involuntary retirement application, and the evidence he submitted his efforts to resist this action a number of times, as did the Board of Trustees, including his request that he be given more time on restricted duty prior to being involuntarily retired.

Following these reviews Campbell was involuntarily retired. He was advised that he could apply for reinstatement each year after his retirement to demonstrate that he was now capable of full duty. Campbell attempted to be reinstated but was unable to persuade the Board that he was qualified to be returned to duty.

Claiming that he had not been afforded due process of law in both the proceedings relating to his involuntary retirement and his subsequent request for reinstatement, Campbell sued.

The district court began its review by noting that:

1. To demonstrate a violation of Section 1983, a plaintiff must show that a person or entity, acting under color of state law, deprived him of the rights, privileges, or immunities guaranteed by the Constitution or laws of the United States;

2. The Fourteenth Amendment means that a local or state government employer may not involuntarily retire a public employee from his or her work without due process of law, citing Board of Regents v Roth, 408 U.S. 564 and Cleveland Board of Education v Loudermill, 470 U.S. 532; and

3. Due process requires notice and an opportunity to be heard, citing Matthews v Eldridge, 424 U.S. 319.

The elements that must be weighed determining if the individual was provided due process are:

(1) the importance of the individual’s interest affected by the official action;

(2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value of additional or alternative procedural safeguards; and

(3) the government’s interest in fiscal and administrative efficiency, and the burden additional or alternative procedures would entail.

Dismissing Campbell petition, the court said that “[g]iven the extensive nature of [the System’s] proceedings Campbell was not deprived of an adequate opportunity to be heard prior to his retirement.”

Another issue: was Campbell entitled to an adversarial hearing and the assistance of counsel during all Medical Board proceedings. No, said the court, noting that the Supreme Court has specifically rejected requiring an adversarial hearing with representation by counsel when making psychiatric medical determinations, even if they ultimately result in involuntary commitment , citing Washington v Harper, 494 US 210.

Reassignment of personnel

Reassignment of personnel
Appeal of Scott Rabler, Commissioner’s Decision No. 15,539

Scott Rabler appealed his transfer* from his position as a High School Principal to an untitled position “as a principal performing various administrative duties.” The Commissioner dismissed his appeal, commenting that school administrators may be transferred within their tenure areas without their consent, In contrast, the Commissioner noted that such personnel may not be transferred outside their tenure areas involuntarily.

According to the decision, Rabler claimed that the school board had established “High School Principal” as a separate tenure area and that he was improperly transferred to another tenure area without his consent. The Commissioner found nothing in the record to substantiate Rabler’s claim. Further, said the Commissioner, Rabler did not establish that “his new duties constitute work in a separate tenure area.” In view of this, Rabler’s representation that he was reassigned outside his tenure area was not persuasive.

Noting that in an appeal to the Commissioner, the appellant has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief, the Commissioner held that Rabler failed to meet these burdens and dismissed his appeal.

In addition, in response to Rabler’s argument that the school superintendent “exceeded his authority in making the transfer without the approval of [the] respondent board,” the Commissioner said that Education Law §§1711 and 2508 authorize a superintendent to transfer personnel from school to school.

The Commissioner also found that the board had given the superintendent “clear and broad” authority to make such personnel changes. This authority, said the Commissioner was set out in the superintendent’s contract with the board by its including provisions granting the superintendent the authority to “organize and reorganize the administrative and supervisory staff, including instructional and non-instructional personnel, in a manner which, in the Superintendent’s judgment, best serves the District.”

In contrast, reassignment of a tenured individual may not be made for disciplinary reasons without complying with the provisions of §3020-a of the Education Law. Here, however, the Commissioner concluded that Rabler’s reassignment had not been made to punish him for alleged misconduct.

The only evidence Rabler presented in support of his claim that his reassignment was disciplinary in nature was an article from the local newspaper asserting that an unnamed sources told the reporter that Rabler was transferred as a result of his misconduct. The Commissioner commented that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein.”

The Commissioner then said that “on the record before me, I am constrained to dismiss the appeal.”

* Although the decision occasionally uses the term "transfers" to describe the personnel change involved here, Rabler’s change was, in fact a "reassignment." Transfers typically involve moving an individual under the jurisdiction of one appointing authority to the jurisdiction of a different appointing authority and usually requires the approval of the individual involved. In contrast, a reassignment is the placement of an individual under the jurisdiction of one appointing authority to another position under the jurisdiction of the same appointing authority-- and the approval of the individual is not required unless a collective bargaining agreement provides otherwise.

For the full text of the decision, go to: http://nypublicpersonnellawarchives.blogspot.com/2007/03/reassignment-of-staff.html

Criminal conviction and disqualification for public employment

Criminal conviction and disqualification for public employmentRodgers v NYC Human Resources Administration, 546 NYS2d 581


The Rogers case involved the termination of a public employee because he allegedly made false statements on his application for public employment. The decision indicates the potential interrelationship of portions of the Civil Service Law, the Human Rights Law and the Corrections Law.

Rodgers had been appointed as a caseworker in 1985. Two years later he was discharged of the grounds that he did not "admit his conviction record on his employment application."* According to the ruling, Rodgers allegedly made a false statement on his application for employment when he stated that his did not have any criminal record. This alleged false statement was claimed to be the "sole basis of [Rodgers'] termination." Rodgers sued, claiming that his termination was arbitrary, and that his discharge was in violation of Section 296 of the Human Rights Law.

Rodgers had been convicted of two misdemeanors. However, he said that he had provided his employer with actual notice of the existence of his history of conviction of these misdemeanors when he submitted a copy of his Certificate of Relief from Civil

Disabilities together with "the dispositions of his criminal cases along with his application." Although the courts of this State have generally upheld the termination of an employee upon a finding that he or she falsified a material fact in his or her application form, here the Appellate Division, 2nd Department, decided that some fact-finding was required. It remanded the matter to the Supreme Court for a hearing. The opinion indicates that the Court believed that Rodgers "should be enabled to continue to be a valuable member of society, rather than be relegated to a life of crime due to this baseless allegation that he was anything less than forthcoming about his past."

The Appellate Division appeared troubled by the summary dismissal of Rodgers' case by the lower court in this instance. The opinion includes a number of footnotes, including one indicating that "it is beyond dispute that [the City] had actual notice of the subject convictions and permitted [Rodgers] to retain his position after questioning;" and a second stating that the file of investigator originally involved in the case, whom Rodgers claimed told him that "there would be no further problems with his application" despite the inconsistency regarding his criminal record, "had been misplaced."

As to the protections contained in the State's Human Rights Law in cases involving an individual's "criminal history," except with respect to applicants for employment as a police officer or peace officer, Section 296.16 of the Executive Law makes it an unlawful discriminatory practice to inquire about an applicant's "criminal history" except with respect to matters then pending or where the individual was convicted.

Additional protections against discrimination based on a criminal conviction are contained in Section 752 of the Corrections Law. Section 752 prohibits "unfair discrimination" against persons previously convicted of one or more criminal offenses. The individual may not be refused employment unless "there is a direct relationship between one or more of the previous criminal offenses and the ... employment sought; or ... granting employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."

Another aspect of this case relates to the issuance of a Certificate of Relief from Civil Disabilities [see Section 702, Correction Law]. Rodgers had obtained such a Certificate from a State court judge The granting of such a Certificate by a court removes any bar to employment automatically imposed by law because of conviction of a crime. One exception, however is that such a Certificate does not excuse the impact of the conviction with respect to such an individual's right to retain, or be eligible for, public office. This exception with respect to public office may be important in certain employment situations. Although all public officers are public employees, not all public employees are public officers.**

Other methods available to a person convicted of a crime by which he or she may seek to obtain relief from certain disabilities imposed by law as a result of such conviction is the granting of a Certificate of Good Conduct by the State Board of Parole [Section 703-a, Correction Law] or the granting of an Executive Pardon by the Governor [Article 4, Section 4, State Constitution].

In the Rodgers case, the Appellate Division said that the action taken against Rodgers by the City "seems contrary to the intent of both the legislature which enacted the statutory relief for the furtherance of public interest [Correction Law Section 702(2)(c)] and the courts which saw fit to grant [Rodgers] a second chance at life." This suggests that in a Section 50.4 disqualification proceeding the courts expect the State Department of Civil Service and local commissions and personnel officers to give due weight to the fact that an applicant or an employee may offer a Certificate of Relief from Civil

Disabilities or a Certificate of Good Conduct or an Executive Pardon in opposing his or her proposed disqualification for certification or employment.

* Although the statutory authority for the termination is not specified in the decision, it is assumed that Rodgers was disqualified pursuant to Section 50.4 of the Civil Service Law. Section 50.4 permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." Except in cases of fraud, there is a three-year statute of limitation on disqualifications pursuant to Section 50.4.

** The Board of Parole is also authorized to issue such Certificates. See Section 703, Correction Law, for the scope and effect of the issuance of such a Certificate by the Board of Parole.

Not all “serious medical conditions” are protected by a constitutional right to privacy

Not all “serious medical conditions” are protected by a constitutional right to privacy
Matson v. Board of Education of the School District of City of New York USCA, 2nd Circuit, 09-3773-cv

Dorrit Matson appealed a judgment by a United States District Court for the Southern District of New York judge dismissing her civil rights action brought under 42 U.S.C. §1983. Matson alleged that the School District had violated her right to privacy by publicly disclosing that she suffers from fibromyalgia.*

The District Court held that Matson did not have a constitutionally-protected privacy right with respect to her medical condition. The Circuit Court of Appeals agreed with the lower court’s ruling.

Although Matson contended that fibromyalgia is a “serious medical condition” that falls within the ambit of constitutionally-protected privacy, the Circuit Court, conceding that it was a serious medical condition, explained that “A general medical determination or acknowledgment that a disease is serious does not give rise ipso facto to a constitutionally-protected privacy right.”

The court distinguished fibromyalgia from other diseases that courts have recognized as having a constitutionally-protected privacy right such as the medical condition of individuals with HIV [see Doe v. City of New York, 15 F.3d 264,] or a “profound psychiatric disorder” [see Powell v. Schriver, 175 F.3d 107].

The Circuit Court commented that case law indicates that “the interest in the privacy of medical information will vary with the condition” and that a constitutional right to privacy for some diseases is greater than for others….”

Also noted was that in considering claims that a constitutional right of privacy attaches to various serious medical conditions, the Second Circuit considers the claim “on a case-by-case basis” and in so doing, the Circuit examines “all the relevant factors that cut both in favor of and against extending privacy protection to such medical conditions.”

NYPPL Comments: The Circuit Court of Appeals' decision notes that a constitutional right to medical privacy may be characterized as a right to “confidentiality,” which “includes the right to protection regarding information about the state of one’s health,” citing Doe, 15 F.3d at 267.

The court then continues: “We reasoned that this is 'especially true with regard to those infected with HIV or living with AIDS, considering the unfortunately unfeeling attitude among many in this society toward those coping with the disease'… In particular, we considered that '[a]n individual revealing that she is HIV seropositive potentially exposes herself [or himself] not to understanding or compassion but to discrimination and intolerance.'”

Assuming, but not conceding, that there is a “constitutionally protected right to privacy” with respect on one’s medical condition, it would seem that such a right would obtain be the condition a hangnail, a heart defect or being seropositive for HIV and that the attitude of society toward those coping with such a medical condition is irrelevant. In other words, the protection obtains regardless of the nature of the medical problem or society’s reaction to those suffering the condition.

* The National Institute of Arthritis and Musculoskeletal and Skin Diseases of the National Institutes of Health, United States Department of Health and Human Services, defines fibromyalgia as “a disorder that causes muscle pain and fatigue.”

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/5c3f080d-679f-4048-903d-6d61e6b64b54/1/doc/09-3773_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5c3f080d-679f-4048-903d-6d61e6b64b54/1/hilite/
.

Discharge of older worker, but not younger worker with whom he fought, upheld; discharge due to history of altercations, not age bias

Discharge of older worker, but not younger worker with whom he fought, upheld; discharge due to history of altercations, not age bias
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

The 7th Circuit recently held that the lower court properly granted judgment as a matter of law on the age discrimination claim of a plant employee who was fired after several heated disputes with his coworkers.Runyon v Applied Extrusion Techs, Inc, ____F.3d____(7th Cir. August 30, 2010).

Although a younger coworker who was involved in an altercation with the employee was not fired, the Seventh agreed with the district court that there was no evidence the employer’s action was motivated by age.

Mitchell H. Rubinstein

Name clearing hearings

Name clearing hearings
Ortiz v Ward, 546 NY2d 624

The Appellate Division, 1st Department, was asked to consider the issue of the right of a probationer discharged after the employer determines that he or she has not satisfactorily completed his or her probationary period to either (1) a "pre-termination hearing" before being discharged or (2) a “name-clearing hearing" following his or her termination.

As to the right to a "pre-termination hearing," the Court said that a probationary employee could be discharged without a hearing so long as the termination was made in good faith. However, it appears that the employer may be called upon to demonstrate that the dismissal was made in good faith by providing some evidence to support its decision to terminate the probationer.

In this case the Appellate Division said that "the evidence in this record supports the conclusion that [Ortiz] was discharged for good reason and, accordingly, no hearing was necessary before terminating [Ortiz'] employment."

Although it is frequently said that a probationer may be terminated from his or her employment at any time after completing the minimum probationary period and before the end of the maximum period of probation without any reason being required to be given for the discharge, if the termination is challenged the employer will probably have to disclose the underlying reason or reasons for the firing. Further, these judgments by the employer will have satisfy the court with respect to their being reasonable and made in good faith.

If, on the other hand, the employer wishes to terminate the probationer before he or she has completed the minimum probationary period required for the position, it may do so only after bringing disciplinary action against the employee and holding a disciplinary hearing or proceeding with a Taylor Law disciplinary arbitration.

In considering the need for a "name-clearing hearing," the Appellate Division noted that Ortiz was not entitled to such a hearing as he did not show that his employer had publicly disclosed the stigmatizing reasons for his discharge. Courts in the past have ruled that the internal disclosure of stigmatizing reasons for the discharge of a probationer to agency administrators did not constitute a public disclosure of such information and thus a name-clearing hearing" was not required because of such intra-agency communications.

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.