Workers found guilty of a “slow-down” in completing their assigned tasks based on circumstantial evidence

Workers found guilty of a “slow-down” in completing their assigned tasks based on circumstantial evidence

Department of Sanitation v Venning, OATH Index #763/11 and Index #764/11

Two New York City sanitation workers were charged with willfully failing to complete their route.

OATH Administrative Law Judge Tynia Richard found that circumstantial evidence supported the inference that the workers intentionally slowed their pace, and recommended a five-day penalty as to each worker for that charge.

One employee was also charged with disobeying an order from a supervisor, directing profanity at her, and recklessly driving away while she was stepping away from the truck, all of which charges were sustained.

ALJ Richard recommended a 30-day suspension without pay for that incident.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-763.pdf

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Employee claims coercion in his agreeing to a demotion in lieu of disciplinary action

Employee claims coercion in his agreeing to a demotion in lieu of disciplinary action
Pagano v Port Authority, 270 AD2d 206

The Employment Relations Panel of the Port Authority of New York and New Jersey affirmed Authority Police Sergeant Frank Pagano agreement to accept a demotion to patrol officer.

Pagano sued, seeking reinstatement to his former position. Pagano claimed that his agreement to the demotion was coerced. The Appellate Division rejected his petition. The court decided that the Panel’s determination may not be disturbed since substantial evidence supports the Panel’s decision that “the Port Authority did not unduly influence or coerce petitioner’s request for demotion from the rank of sergeant to that of police officer.”

Coercion is an issue that sometimes emerges in the course of a disciplinary settlement. An individual may claim that he or she was threaten with disciplinary action if he or she declined to resign or refused to agree to some personnel change demanded by the appointing authority.

The Court of Appeals addressed this question in Rychlick v Coughlin, 63 NY2d 643.

Rychlick, a state correction officer, was told that unless he immediately submitted his resignation, formal disciplinary charges would be filed against him. He submitted his resignation.


A few days later, claiming that he had been forced to submit his resignation, Rychlick attempted to withdraw it. The department refused to allow him to withdraw the resignation and Rychlick sued on the grounds that it had been obtained under duress and thus was void.

The general rule is that a resignation must be in writing and once submitted, its withdrawal or recession requires the approval of the appointing authority.

The Court of Appeals, upholding Corrections’ refusal to allow Rychlick to withdraw the resignation, said that threatening an employee with disciplinary action if he or she did not resign did not constitute duress since the appointing authority had the legal right to file such charges.

The basic principle: threatening to do what one had the legal right to do does not constitute duress.

Another aspect of demanding that an individual submit his or her resignation or face disciplinary charges: such a resignation may be considered in determining the individual’s eligibility for public employment in the future.

Civil Service Law Section 50.4(e) authorizes the State Department of Civil Service or a civil service commission to disqualify an applicant or employee “who has been dismissed from a permanent position in the public service upon stated written charges of incompetence or misconduct, after an opportunity to answer such charges in writing, or who has resigned from, or whose service has otherwise been terminated in, a permanent or temporary position in the public service, where it is found after appropriate investigation or inquiry that such resignation or termination resulted from his incompetency or misconduct, provided, that in cases of dismissal, resignation or termination after written charges of incompetency, the examination or certification in question be for a position that requires the performance of a duty or duties which are the same as or similar to the duty or duties of the position from which the applicant has been dismissed, resigned or terminated on account of incompetency”.
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Public policy exception to compelling arbitration

Public policy exception to compelling arbitration

Matter of Mineola Union Free School Dist. v Mineola Teachers' Assn., 37 AD3d 605

The Appellate Division affirmed a Supreme Court ruling dismissing a motion for a preliminary injunction staying arbitration filed by the Mineola Union Free School District and granting the Mineola Teachers’ Association’s motion to compel arbitration.

After holding that “the subject of the claim sought to be arbitrated is the type authorized by the Taylor Law,” the Appellate Division explained:

Contrary to the District's contention, an arbitrator's award in favor of the Association would not violate public policy.

The court noted that “The public policy exception to parties' power to agree to arbitrate disputes, and an arbitrator's power to resolve disputes, is a narrow one,” applying only in situations where “the award itself [would] violate a well-defined constitutional, statutory or common law of this State.”

In this instance, the Appellate Division concluded that “no law prohibits an award validating the procedures enumerated” in an article set out in the collective bargaining agreement between the parties.

The public policy exception in arbitration was considered by the Court of Appeals in NYC Transit Authority v Transport Workers Union of America, 99 NY2d 1

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/public-policy-exception-to-arbitration.html
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The date of the certification of the candidate for appointment rather than the date a candidate's name is reachable for appointment controls

The date of the certification of the candidate for appointment rather than the date a candidate's name is reachable for appointment controls
Matter of Woods v New York City Dept. of Citywide Admin. Servs., 2011 NY Slip Op 02719, Court of Appeals

Among the qualifications for appointment as New York City firefighter was that the candidate, by the date of appointment, have “successfully completed 30 semester credits from an accredited college or university or obtained a four-year high school diploma and completed two years of honorable full-time U.S. military service.”

Robert Thomas Woods passed a civil service examination and his name was placed on a list of eligibles to be appointed as a New York City firefighter.

Woods did not meet these requirements at the time he sat for the examination nor did he meet them at the time his name was initially reached for appointment as a firefighter. However, Woods was on active military duty when his name was initially reached on the list.

When Wood was discharged from military service he filed an "Application Under State Military Law for Determination of Rights on Eligible List" with the New York City Department of City-wide Administrative Services [DCAS] for “a determination of his rights under Military Law §243.” §243, in pertinent part, provides that any person whose name is on an eligible list and comes up for certification while on duty, shall have his or her name placed on a special eligible list if a request is made within 90 days of his or discharge from active duty.

DCAS decided that Woods’ name could not be placed on a special eligible list because on the date when his name initially had been reached for appointment from the list, he was not qualified for appointment on that date.

The Court of Appeals disagreed, holding that Military Law §243(7) required DCAS to place petitioner on a "special eligible list", from which he could be certified for appointment after his military duty ended. The court explained that so long as Woods met the qualifications for appointment when the time to certify him for appointment arrived, it did not matter that he did not satisfy them when his name was first reached for certification for appointment from the list, at which time he was on military duty.

DCAS, said the court, “misconceived the statutory scheme,” pointing out that §243(7), by using the word "shall" rather than "may" gives DCAS no discretion to refuse to put names on a special eligible list.

Although Civil Service Law §50.4 allows DCAS to exercise its discretion not to certify names of people who do not meet the required qualifications, that discretion, said the Court of Appeals, may be exercisable at the time when the decision about such certification is made — here when Woods’ name “was or should have been reached on the special list” and certified for appointment.

Accordingly, said the court, Supreme Court and the Appellate Division determinations that Woods’ name should not be placed on a special military eligible list were incorrect and must be vacated.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02719.htm
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If substantial evidence supports the appointing authority’s denial of GML §207-a benefits, it must be sustained

If substantial evidence supports the appointing authority’s denial of GML §207-a benefits, it must be sustained
Matter of Ridge Rd. Fire Dist. v Schiano, 2011 NY Slip Op 02720, Court of Appeals

Kevin Nowack, a firefighter employed by the Ridge Road Fire District, claimed to have sustained a back injury while on duty.

Ultimately the arbitrator concluded that the District's denial of Nowack's §207-a benefits was not supported by substantial evidence.

The District appealed the arbitrator's determination and Supreme Court granted the District's petition, vacated the arbitrator’s decision and reinstated the District's original decision denying Nowack application for §207-a benefits.

Supreme Court held that the hearing officer's decision was arbitrary and capricious, and noted that the District's determination denying benefits "was supported by substantial evidence in the record as a whole despite the fact that there was conflicting medical evidence to support a contrary result."

The Appellate Division reversed the Supreme Court’s determination and dismissed the Fire District’s petition, holding that the District's "denial of benefits, which was based on the determination that the disability was solely related to a prior non-work-related injury, [was] not supported by substantial evidence."

The Court of Appeals reversed the Appellate Division’s decision.

The court said that the parties here agree that under the relevant statute and collective bargaining agreement, the District's denial of benefits had to be upheld if substantial evidence* supported it. Accordingly, said the Court of Appeals, “the independent hearing officer was required to give deference to the District's decision and Nowack bore the burden of establishing that the District's denial determination had not been supported by substantial evidence.”

Viewing this record as a whole, the Court of Appeals held that “Supreme Court correctly held that the hearing officer's decision, i.e. that the District's denial of section 207-a benefits was not based on substantial evidence, was arbitrary and capricious.”

Further, said the court, “It is of no consequence that the record also indicates that there was evidence supporting Nowack's contention.” While frequently there is substantial evidence on both sides, the Court of Appeals explained that the applicable standard here was whether the District's denial of benefits was supported by substantial evidence.

In this instance, said the court, there is unquestionably substantial evidence supporting both sides' positions. Accordingly “the hearing officer acted arbitrarily in deciding that none supported the District's” position.

* Court of Appeals noted that it had defined "substantial evidence" as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact, and "is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02720.htm

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Concerning disciplinary probation

Concerning disciplinary probation
Gonzalez v Safir, App. Div., 270 AD2d 52
Dillon v Safir, App. Div., 270 AD2d 116

The Gonzalez case deals with the imposition of probation as a disciplinary penalty; the Dillon decision indicates the potential impact that a disciplinary probation may have on an individual.

The bottom line: an individual serving in disciplinary probationary status may be dismissed without notice or hearing if his or her service during the probationary period is found to be unsatisfactory.

The Gonzalez case

Eduardo A. Gonzalez, a New York City police officer, was found guilty of having wrongfully struck another person. The penalty imposed by the disciplinary hearing officer: disciplinary probation for one year and a 30-day suspension without pay.

The Appellate Division, First Department, confirmed the findings of the hearing officer and the penalty given to Gonzalez as a result of his having been found guilty of the charges filed against him. The court said that it found the penalty imposed was appropriate in light of Gonzalez’s’s violent behavior and poor judgment when he struck his girlfriend.

The Appellate Division also commented on Gonzalez’s evident lack of candor when he testified about the incident.

The Dillion Case

Bradly Dillion, another New York City police officer, was terminated from his employment as a probationary employee without notice or hearing. Dillion had been serving a one-year disciplinary probation imposed pursuant to an earlier disciplinary action at the time he was dismissed.

Dillon had been found guilty of charges alleging excessive use of force.

Dillion challenged his termination, contending that under Section 891 of the Unconsolidated Law, police officers can be terminated only for incompetence or misconduct shown after a hearing.

The Appellate Division rejected Dillion’s arguments for two reasons. The court said that:

1. In Williams v Safir, 696 NY2d 139, Dillion’s theory that Section 891 applies to probationary as well as tenured police officers was specifically rejected; and

2. Unless it is shown that the termination of an individual on disciplinary probation was made in bad faith, police officers on disciplinary probation, like those on ordinary probation, can be terminated for any or no reason.

The court said that evidence in the record of disciplinary problems other than that underlying the probation that would support the conclusion that [Dillion’s] termination was made in good faith.

However, there may be limitations to dismissing an individual serving a disciplinary probation without first providing the employee with a pre-termination notice and a hearing.

If the individual is placed on disciplinary probation subject to specific terms and conditions set out in the disciplinary settlement or award, he or she may not be summarily terminated as a probationer unless he or she violates the specific terms of the disciplinary probation.

This point is illustrated in ruling by the Appellate Division in Taylor v Cass, 505 NY2d 929.

Under the terms of a disciplinary settlement, Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was adversely affected by his consumption of alcohol. Taylor was subsequently terminated from his position for sleeping on the job.

Although the employer claimed that the termination without a hearing was permitted under the terms of the disciplinary settlement agreement, the Appellate Division disagreed and directed the agency to reinstate Taylor to his position with back pay and benefits.

The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not authorized by the settlement agreement. The court ruled that Taylor could only be terminated without a hearing if he was found to have violated the specific reason set out in the settlement agreement: the performance of his duties were unsatisfactory because of his consumption of alcohol.

The Dillion and Taylor decisions illustrate two basic formulas followed in imposing disciplinary probation as a penalty:

1. The Dillion formula: You should be terminated but you’re getting another chance: any kind of misperformance, malperformance or nonperformance and you will be dismissed!

2. The Taylor formula: You should be terminated based on specific misconduct, but you’re getting another chance: if you do it again, you will be dismissed!

In effect, an individual serving a Dillion formula disciplinary probationary period is treated as though he or she is serving a Civil Service Law Section 63 probationary period.

In contrast, an individual serving a Taylor formula disciplinary probation period continues to hold status as a tenured employee but he or she may be summarily terminated if he or she commits a specified type offense.
There are other potential impacts resulting from disciplinary probationary status to be considered as well. For example, assume there is a layoff. Sections 80 and 80-a of the Civil Service Law provide that probationary employees are to be laid off before less senior tenured employees.

An individual serving a Dillion type disciplinary probation presumably would be treated in the same manner as any other probationer with respect to suspension or demotion in a layoff situation. In contrast, the Taylor type disciplinary probationer presumably would retain all of his or her tenured seniority rights without regard to his or her disciplinary probation status.

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