Declining to reveal “sensitive family information” held mitigating circumstances sufficient to justify recommending a less severe disciplinary penalty

Declining to reveal “sensitive family information” held mitigating circumstances sufficient to justify recommending a less severe disciplinary penalty
Department of Sanitation v Anonymous, OATH Index #181/11

An employee admitted she was absent without leave for almost one year.

In mitigation, the employee testified regarding personal and health problems and said that she did not request leave because she would have to reveal sensitive information about her family, and was afraid it would not be kept confidential.

OATH Administrative Law Judge Faye Lewis found that although leave would have been granted had the employee properly requested it, Anonymous could be disciplined for taking absence without leave.

In consideration of extraordinary mitigating circumstances, however, ALJ Lewis recommended a sixty-day suspension without pay, which recommendation the appointing authority adopted.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-181.pdf
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Agency's failing to appear at an administrative hearing may have adverse consequences

Failing to appear at an administrative hearing may have adverse consequences
Aures v Buffalo Board of Education, 272 AD2d 664

The Aures decision demonstrates the problem that could result if a party fails to appear at an administrative hearing as scheduled -- the hearing officer may hold the hearing in absentia and the determination will be binding on the parties.

Although it had not participated in the administrative hearing, the Buffalo Board of Education [Buffalo] attempted to overturn a determination by an Unemployment Insurance Administrative Law Judge [ALJ] holding that Karen M. Aures was eligible for unemployment insurance benefits.

Aures, one of number of temporary teachers employed during academic 1996-1997, had applied for unemployment insurance benefits at the end of the school year. The local office of the Division of Unemployment Insurance found that Aures had received reasonable assurances of continued employment for the next academic year and disapproved her application for benefits. Aures appealed.

The key to a teacher’s eligibility for unemployment insurance between school years depends on his or her receiving a reasonable assurance of reemployment for the next school year within the meaning of Section 590(10) of the Labor Law.

An administrative hearing was scheduled but Buffalo failed to appear at the hearing. The Administrative Law Judge [ALJ] elected to proceed to hold the hearing notwithstanding Buffalo’s absence. The bottom line: the ALJ overruled the initial determination, holding Aures was eligible to receive benefits.

When Buffalo learned of the decision, it asked the ALJ to reopen the case. The ALJ denied Buffalo’s motion and the Unemployment Insurance Appeals Board [Board] affirmed the ALJ’s ruling. Buffalo subsequently asked the Board to reconsider its decision concerning Buffalo’s motion to reopen the matter. The Board agreed to do so, but ultimately decided to adhere to its previous ruling that sustained the ALJ’s determination denying Buffalo’s request to reopen the hearing. Buffalo appealed.

Why didn’t had Buffalo appear at the hearing before the ALJ? According to the court, Buffalo’s excuse for its not appearing at the hearing as scheduled: the unavailability of certain key witnesses.

The Appellate Division was not impressed by this argument. Noting that the key witnesses in question were under Buffalo’s control, the court said that “[h]aving elected to assign such witnesses to their regular duties rather than directing them to attend the scheduled hearings, [Buffalo] cannot now be heard to complain.”

The court affirmed the Board’s rejection of Buffalo’s motion to reopen the matter, explaining that the decision to grant an application to reopen lies within the discretion of the Board.

Unless it can be shown that the Board abused its discretion, the Board’s decision will not be disturbed by the courts. The Appellate Division decided that the record supported a finding that Board had not abused its discretion and dismissed Buffalo’s appeal.
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Probationary employee challenging his or her termination must show bad faith or an improper or impermissible reason underlies the termination

Probationary employee challenging his or her termination must show bad faith or an improper or impermissible reason underlies the termination
Matter of Mathis v New York State Dept. of Correctional Servs., 2011 NY Slip Op 01190, Appellate Division, Fourth Department

Probationary correction officer Demar Mathis filed an Article 78 petition challenging his termination from his employment for “failure to complete his probationary period in a satisfactory manner.”

Supreme Court granted Mathis’ petition, annulled the appointing authority's determination and reinstated him to in his former position with back pay. Although Supreme Court thereafter granted the Correction Department’s motion to reargue its opposition to Mathis’ petition, it ultimately adhered to its prior decision.

The Department appealed and the Appellate Division overturned Supreme Court’s ruling.

First, the Appellate Division said that it agreed with the Department’s argument that at the time of his termination, Mathis was a probationary employee who could be terminated for “almost any reason or for no reason at all," citing Matter of Swinton v Safir, 93 NY2d 758.

It then noted that although Mathis’ probationary term was to expire on October 29, 2007, it was extended by 92 days in accordance with the provisions set out in 4 NYCRR 4.5(g) in the event a probationer is absent during his or her probationary period.*

The Appellate Division said that Supreme Court erred when it concluded that Mathis was no longer a probationary employee on the date he was terminated because Supreme Court calculated the extension required by 4 NYCRR 4.5(g) using calendar days rather than workdays.

In the words of the Appellate Division, “Where, as here, a probationary term is extended pursuant to 4 NYCRR 4.5 (g), the extension is "one workday for every workday" the employee has missed.”

The Appellate Division than opined that "As a probationary employee, [Mathis] had no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason." Mathis, said the court, made no such showing here and that the record indicated that he had excessive absenteeism, disobeyed a direct order to return to work and continued to have absenteeism problems after being counseled about his absenteeism.

The court agreed with the Department that "[c]hronic absenteeism is a sufficient basis for terminating a probationary employee" as is the refusal to comply with a direct order.”

* 4 NYCRR 4.5(g), in pertinent part, provides that with respect to absence during probationary term, Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term. … Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01190.htm
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Supervisor's weekly calls to employee on FMLA leave to ask when he or she would return to work interfers with employee's FMLA rights

Supervisor's weekly calls to employee on FMLA leave to ask when he or she would return to work interfers with employee's FMLA rights
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.

In Terwilliger v. Howard Memorial Hospital, No. 09-CV-4055 (W.D. Ark. Jan. 27, 2011), the Court found that weekly calls by the employee's immediate supervisor during the employee's approved, post-back surgery FMLA leave to determine when the employee would return to work interfered with the employee's FMLA rights by discouraging or "chilling" the use of FMLA leave.

The employee claimed that, as a result of the calls, she felt pressured to return to work rather than remain on FMLA leave.

The employer argued that, because the employee did not in fact return to work earlier, the employee failed to establish her FMLA interference claim.

The Court disagreed with the employer, noting that "interference" includes not only refusing to authorize leave, "but discouraging an employee from using such leave." 29 CFR 825.220(b).

Mr. Bosland Comments: The decision correctly posits that "interference" includes discouraging an employee from exercising FMLA rights. The decision is curious in that it fails to address the employer's right to require an employee on FMLA leave to report periodically on the employee's status and intent to return to work, as permitted by 29 CFR 825.311(a).

From the decision, it does not appear that the employer argued the point. Of course, it is possible that an employer may abuse the right to require periodic status reports resulting in illegal interference. For example, if the employee was provided a certification that stated unequivocally that an employee needed a set period of leave and would return on a date certain, an employer that nevertheless requested periodic status reports on a daily or weekly basis may be found to have crossed the line into impermissible interference.

Unfortunately, it is not clear from the Terwilliger decision why weekly status reports in that case interfered with the employee's FMLA rights. The decision simply fails to detail why it was unreasonable for the supervisor to require weekly status reports. If the duration of approved leave is unknown weekly status reports would appear to be reasonable.

The decision appears to be a product of the inferences favoring the nonmoving party (the employee) faced with the employer's motion for summary judgment. I do not believe it stands for the proposition that weekly status reports are a per se violation of the FMLA no matter what the factual circumstances. Rather, because periodic status reports are specifically permitted by the FMLA, there will be some situations - particularly where the duration of the employee's FMLA absence is unknown - where weekly status reports do not interfere with an employee's FMLA rights.
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Are appointment promises that are not met binding on the appointment authority?

Are appointment promises that are not met binding on the appointment authority?
Carson v NYC Dept. of Sanitation, 271 AD2d 380

The Carson decision demonstrates the general rule that promises made by a public employee to an applicant or to another worker are not binding on the appointing authority unless the individual is authorized to make such commitments on behalf of the appointing authority.

Calvin Carson was terminated from his position with the New York City Department of Sanitation [DOS]. When his request to be reinstated to his former position was denied, he sued, claiming breach of contract. The basis for his breach of contract action: Carson alleged that a DOS employee had promised him that he would be reinstated to his former position upon his completion of a drug treatment program.

Citing Granada Building, Inc v City of Kingston, 58 NY2d 705, the Appellate Division dismissed Carson’s appeal. The court said that even if Carson had been promised reinstatement by the DOS employee, the promise was unauthorized and DOS was not bound by it.

On a procedural point, the court noted that although Carson had sued for breach of contract, Supreme Court Judge Beverly Cohen had correctly converted Carson’s complaint into an Article 78 proceeding to annul DOS’s determination to terminate Carson from his position. Why? Because, the court explained, Carson’s original petition effectively sought [his] reinstatement to his former position as a DOS employee, and [DOS] had the statutory and regulatory authority to issue a final and binding determination with respect to this employment. Such decisions by the appointing authority are tested via an Article 78 procedure action rather suing for breach of contract.

Carson also contended that the doctrine of promissory estoppel supported his demand for reinstatement. The Appellate Division rejected this theory, commenting that there was no merit in applying the doctrine in Carson’s case, particularly in light of [his] prior execution and violation of a final termination agreement, which agreement was concealed from the DOS employee alleged to have promised Carson’s reinstatement.

The same basic rationale was applied in Schwartz v Crosson, 165 AD2D 14, a case decided by the Appellate Division, Third Department.

Michael Schwartz was promised a certain salary upon appointment to public service only to learn that he would be paid at a lower rate once he reported for duty.

The Appellate Division said that the doctrine of estoppel was not applicable even though Schwartz had relied upon the information given to him concerning his salary upon appointment to his detriment. The decision notes that it is well settled that estoppel is generally not available against the State when it acts in a governmental capacity.

The Court also said that although an exception to the general rule exists in “unusual factual situations” to prevent injustice, it did not believe that Schwartz’s situation fell within such an exception.

Significantly, the Carson ruling notes that the possibility of one public employee misinforming another public employee concerning personnel matters, while unfortunate, is not so “highly unusual” that the general rule against estoppel should be ignored.
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