Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations

Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations 

Matter of Cappellino v Town of Somers, 2011 NY Slip Op 03234, Appellate Division, Second Department

Cappellino v Town of Somers demonstrates, once again, that a disappointed individual’s reliance on a request for reconsideration of a final administrative decision to toll or extend the statute of limitations to file a timely appeal is misplaced

The Town of Somers and the Town of Somers Police Department denied a request submitted by James Cappellino and other individuals for reimbursement of the cost of their Medicare Part B benefits.

In an action characterized as “in the nature of mandamus,* Cappellino asked Supreme Court to order the Town of Somers to provide the appropriate amounts to reimburse them for those costs.

Supreme Court, however, never considered the merits of the petition, finding that it was untimely.

The Appellate Division agreed, explaining on June 18, 2009 Cappellino and the others involved in this action received “a final and binding determination within the meaning of CPLR 217(1), as it unequivocally denied the petitioners' request for reimbursement, and it therefore commenced the running of the statute of limitations.”

Cappellino and the other plaintiffs, however, did not commence this proceeding, until October 22, 2009, which was beyond the applicable four-month statute of limitations of CPLR 217(1). 

Although Cappellino contended that there were communications with the Town’s counsel after June 18, 2009, including an alleged request for further administrative review, neither such a request nor related correspondence extended or tolled the running of the statute of limitations.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03234.htm

* “Mandamus was one of a number of ancient common law writs and was issued by a court to compel an administrative body to perform an act required by law.

Employee’s claims of disparate treatment on the basis of gender, sexual harassment and retaliation by the employer dismissed for lack of sufficient evidence

Employee’s claims of disparate treatment on the basis of gender, sexual harassment and retaliation by the employer dismissed for lack of sufficient evidence
Grovesteen v New York State Pub. Employees Fedn., AFL-CIO, 2011 NY Slip Op 03168, Appellate Division, Third Department

Robin Grovesteen was employed as a field representative by the New York State Public Employees Federation, a union representing various professional, scientific and technical employees of New York State, among others.

Grovesteen sued the Federation, alleging “disparate treatment on the basis of gender, sexual harassment and retaliation.” Supreme Court dismissed her petition and the Appellate Division affirmed the lower court’s action.

With respect to her claims of disparate treatment claim, Grovesteen alleged that because of her gender, she was, among other things, denied separate office space, required to conduct excessive training sessions, forced to cover work assignments in other regions, and denied direction, assistance and support from her supervisors.

As to her claims related to sexual harassment, Grovesteen said that the director of field services at the time she was hired, who eventually became her direct supervisor, made disparaging sexual remarks about her at the onset of her employment and that the elected regional coordinator in her region, who was a union member, created a sexually hostile environment by, among other things, voicing his opinion that plaintiff was hired because of her sexual relationship with another field representative and making inappropriate comments about her attire.

Lastly, Grovesteen contended that due to her disability and exercise of her rights under the Human Rights Law, the Federation retaliated against her by, among other things, closing the Region 7 office and contesting her claim for workers' compensation benefits.

The Appellate Division found that notwithstanding the fact that Grovesteen was a woman and thus a member of a protected class, the evidence she presented was insufficient to establish a prima facie case of sexual discrimination or harassment.

The court explained that “Even considering the totality of the alleged incidents in a light most favorable to [Grovesteen], the terms and conditions of her employment, which clearly caused her stress and frustration, were not so severe and pervasive as to create an adverse employment action in support of her claim of disparate treatment based on gender.

Turning to Grovesteen’s contention with respect to a hostile work environment, the Appellate Division said that there was not sufficient evidence to demonstrate that the conduct so permeated the workplace and altered the conditions of her employment as to support the claim of sexual harassment based on a hostile work environment. Further, said the court, although Grovesteen’s allegations demonstrate “the existence of personality conflicts and disagreements with the management's style, as well as the inherent demands and autonomous nature of being the only field representative in a large remote geographic region, the record does not demonstrate any material adverse change in her employment as a result of the alleged conduct warranting the inference of a discriminatory motivation.”

As to Grovesteen’s claim of retaliation, the Appellate Division ruled this aspect of her petition was also properly dismissed. Here, said the court, Grovesteen’s “sporadic complaints” during her employment are insufficient to establish that she was engaged in a protected activity, “particularly given the fact that no formal claim of unlawful discrimination was made until after the allegedly retaliatory action occurred.”

Finally, the court rejected Grovesteen’s argument that the Federation’s challenging her application for workers’ compensation benefits constituted retaliation within the meaning of the Human Rights Law, indicating that “an employer's exercise of its right to challenge a workers' compensation claim cannot be linked to a retaliatory motivation.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03168.htm

Unfair labor practices - protected activities

Unfair labor practices - protected activities

CSEA Local 1000 v PERB, 267 AD2d 935

CSEA appealed a determination by the New York State Public Employment Relations Board [PERB] that the Holbrook Fire District did not commit an improper employer practice when it disciplined one of its employees, Jason Feinberg.

The district had filed eight charges against Feinberg, a firehouse attendant, alleging misconduct and, or, incompetence pursuant to Section 75 of the Civil Service Law.

Feinberg was alleged to have “permitted unauthorized personnel in his work area, participated in inappropriate activities during work hours, failed to timely complete certain work assignments and follow standard operating procedures in performing certain work-related activities.”

CSEA filed an improper employer practice charge against the district pursuant to Civil Service Law Section 209-a with PERB on behalf of Feinberg. CSEA contended that the district had filed disciplinary charges against Feinberg “in retaliation for his efforts at organizing a union.”

While CSEA’s charges were pending before PERB, the disciplinary hearing officer issued a report and recommendation finding Feinberg guilty of six of the charges. The penalty recommended by the hearing officer: Feinberg should be terminated from his employment. The District accepted the hearing officer’s findings and recommendations and dismissed Feinberg.

CSEA and the district stipulated that rather than holding a separate hearing, the record of the proceedings conducted in connection with the disciplinary charges would be used by PERB’s Administrative Law Judge (ALJ) in resolving the improper practice charge. Finding that other employees who had engaged in similar misconduct had not been disciplined by the district, the ALJ ruled that the district “had committed an improper practice by discharging Feinberg in retaliation for protected union activities.” PERB reversed its ALJ’s ruling.

PERB said that “the ALJ should have deferred to the findings of the hearing officer that the charges against Feinberg were brought by the District for proper business reasons and not to retaliate against him for his organizing activities”.

The Appellate Division initiated its review of CSEA’s appeal from PERB’s ruling by noting that “the relevant inquiry in a proceeding pursuant to Civil Service Law Section 75 is very different than that in an improper practice proceeding under Civil Service Law Section 209-a.” The court, citing City of Albany v Public Employment Relations Board, 43 NY2d 954, said:

1. In considering an appeal involving Section 75, the focus is upon whether there was cause for the employee’s dismissal.

2. In considering an appeal involving Section 209-a, the focus it is whether the employer‘s action was motivated by anti-union animus and “it is irrelevant ... whether or not cause for the employer’s action in terminating [the employee] actually existed.”

The Appellate Division said that PERB relied upon its policy of deference and the disciplinary hearing officer’s determination when it reversed ALJ’s determination.

However, said the court, its review of the decision in the Section 75 proceeding indicates that the disciplinary hearing officer “did not fully consider the dispositive issue in the improper practice proceeding, i.e., whether Feinberg’s firing was improperly motivated.” Accordingly, the Appellate Division said that “PERB’s deference to the [Section 75] Hearing Officer’s findings as the sole basis in resolving the improper practice charge was inappropriate.”

The Appellate Division annulled PERB’s determination and remanded the case to PERB “for an independent review of the ALJ’s decision of [CSEA’s] improper practice charge in light of all the evidence contained in the record of the Civil Service Section 75 proceeding.”

Transfer of functions

Transfer of functions

Metacarpa v Johnston, App. Div., Third Dept., 268 AD2d 938

[decided with Terrusa v Wing, 268 AD2d 938]

In 1997 the Department of Social Services [DSS] was dissolved and its functions were distributed among one existing State agency -- the Department of Health [DOH] and -- and two newly created State agencies -- the Office of Children and Family Services [OCFS] and the Office of Temporary and Disability Assistance [OTDA].

Some of the former DSS employees (the Metacarpa plaintiffs) were transferred to OCFS while others (the Terrusa plaintiffs) were transferred to OTDA.

The basic argument advanced in both actions: because these employees were engaged in Medicaid audit functions, which were transferred to DOH, Civil Service Law Section 70.2 required that they be transferred to Health rather than to other agencies.

The Appellate Division said that the sole issue to be determined was whether the determinations transferring these employees to either OCFS or OTDA were arbitrary, capricious or affected by error of law.

The court commenced its review by stating that the transfer of employees under Section 70(2) of the Civil Service is controlled by the State Department of Civil Service’s State Personnel Management Manual. The manual provides that the agency losing the function [here DSS], after consultation with the gaining agencies [i.e., OCFS and OTDA] and the appropriate control agencies [presumably Civil Service Department and the Division of the Budget], determines which employees in which titles are ‘substantially engaged in the performance of the function’ to be transferred.”

Addressing the objections raised by the Metacarpa and Terrusa plaintiffs with respect to their inclusion on the list of employees to be transferred to OCFS or OTDA and their exclusion from the DOH list, the Appellate Division found that: 

1. DSS employees who worked in defined program units within DSS (2,285 out of the total 4,450 DSS employees) followed those units when entire program units were transferred; and

2. The Metacarpa and Terrusa plaintiffs were determined not to work in a particular program unit because they carried out functions and duties, which supported a variety of programs and thus held “generic administrative support positions.” 

The court took special note of the fact that the Manual stated that “.... interdepartmental titles which primarily provide support of a variety of functions ... shall not generally be considered to be substantially engaged in the function being transferred.”

In other words, the duties of the Metacarpa and Terrusa plaintiffs were not sufficiently limited in scope so as to be deemed “substantially engaged in the functions transferred to Health.

This guideline, said the court, was “not irrational.” Further, the Appellate Division pointed out that former DSS officials making the transfer decisions had determined that the Metacarpa and Terrusa petitioners’ respective expertise and experience relating to Medicaid were not necessary for the continuation and integrity of the Medicaid program, which had been transferred to DOH.

Noting that a number of the plaintiffs “tacitly acknowledge” this point by arguing that the same “could be said” of others transferred to DOH, the Appellate Division decided that the rejection of the Metacarpa and Terrusa plaintiffs’ objection to the administrative decision was neither irrational nor arbitrary. The Supreme Court’s dismissal of the petitions was affirmed.

Untenured employee must demonstrate his or her termination was made bad faith or for an unlawful reason in order to successfully challenge his or her dismissal

Untenured employee must demonstrate his or her termination was made bad faith or for an unlawful reason in order to successfully challenge his or her dismissal

Shih v Waterfront Commn. of N.Y., 2011 NY Slip Op 03190, Appellate Division, First Department

As Conrad Shih’s status as an auditor with the New York City Waterfront Commission was not within the Commission’s definition of a "permanent employee" Supreme Court ruled that Shih was not entitled to the due process protections of a “permanent employee” i.e. a pretermination hearing.

The Appellate Division agreed with the lower court determination that the Commission’s terminating Shih without such a hearing was neither arbitrary nor capricious.

Key to the Appellate Division’s decision was Howard v Wyman, 28 NY2d 434. In Howard the Court of Appeals said that “An agency has broad power to construe and interpret its own rules” and its interpretation must be upheld where, as here, it is rational.

As a nontenured employee, said the court, Shih was not entitled to a full adversarial hearing concerning the reasons for his termination. Further, the Appellate Division said that Shih “failed to show that his termination was for an improper reason or in bad faith,” citing Beneky v Waterfront Commn. of N.Y. Harbor, 42 NY2d 920, Certiorari denied 434 US 940.

Applying the “Pell Doctrine,”* the court ruled that “Given [Shih’s] attempt to steal a DVD from a music store and failure to report his arrest on related charges, we cannot say that the penalty imposed was so disproportionate to the offense as to shock one's sense of fairness.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03190.htm

* Matter of Pell v Board of Education, 34 NY2d 222.

Vacating a disciplinary arbitration award

Vacating a disciplinary arbitration award

Roemer v NYC Bd. of Ed., 268 AD2d 479, Motion for leave to appeal denied, 94 NY2d 763

The Roemer decision serves as a reminder that the grounds for appealing a Section 3020-a disciplinary determination are very limited. In order to overturn a Section 3020-a arbitration award, it is necessary to prove that one or more of the statutory reasons set out in Article 75 of the Civil Practice Law and Rules for vacating the award exist.

Under Article 75, [Section 7511.b] an arbitrator’s award can be vacated if a court finds that the rights of a party were violated because of corruption, fraud or misconduct in obtaining the award; the arbitrator was not impartial; to one party; the arbitrator exceed his or her powers or so imperfectly exercised them that a final determination was not made or the arbitration procedures were not followed [unless the party objecting to the award continued with the arbitration without objection after becoming aware of the defect].

Here David Roemer, a New York City schoolteacher, was terminated after the Section 3020-a arbitrator found him guilty of charges of incompetence and insubordination. He attempted to vacate the award. However, the Appellate Division sustained the Supreme Court’s dismissal of Roemer’s petition to vacate the award because Roemer “did not demonstrate” any basis for vacating the award under Section 7511.

In addition to the limited grounds for vacating the arbitration award set in Section 7511, Section 3020-a set a very short statute of limitations for filing a petition to overturn or modify the award as well as settling other limitations in such cases. Section 3020-a.5 sets out the following limitations with respect to challenging a Section 3020-a disciplinary determination:

1. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to CPLR Section 7511.

2. The court’s review shall be limited to the grounds set forth in Article 75. Further, the hearing panel’s determination shall be deemed final for the purpose of such proceeding.

3. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

Point 3 is particularly significant as it allows the appointing authority to impose the penalty determined by the arbitrator while the decision is being challenged.

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

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Accidental disability retirement benefits application based on a training-related injury

Accidental disability retirement benefits application based on a training-related injury

Geraci v Hevesi, 37 AD3d 941

Joseph Geraci, a police officer, injured his left knee while participating in training course. Geraci said that his injury occurred when his left foot sank into an exercise mat and his sneaker gripped the mat, thereby causing his left leg to twist as he attempted to move to his right.

Claiming that the injury resulted from an accident, Geraci applied for accidental disability retirement benefits. The Retirement System’s hearing officer found that Geraci failed to establish that the incident resulting in his injury constituted an accident within the meaning of the Retirement and Social Security Law. The State Comptroller accepted the Hearing Officer's findings and conclusions, and disapproved Geraci ’s application for accidental disability retirement benefits.

The Appellate Division confirmed the Comptroller’s determination. The court said that based on its review of the record, “we cannot characterize the subject incident as a “'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'“ that would support a finding that Geraci’s injury resulted from an accident.

Rather, said the court, Geraci ’s injury “was the result of a training program constituting an ordinary part of petitioner's job duties and the normal risks arising therefrom,” citing Matter of Felix v New York State Comptroller, 28 AD3d 993, and other rulings.*

For the full text of the opinion, go to:

http://www.nycourts.gov/reporter/3dseries/2007/2007_01046.htm

* The Appellate Division also commented that “regarding [Geraci’s argument concerning] the inappropriateness of his footwear, even if accepted, would not transform the incident into an accidental event.”

Payment of unreimbursed medical expenses permitted by the Internal Revenue Code via a “Health Reimbursement Arrangement Plan” held not the same as health insurance premiums

Payment of unreimbursed medical expenses permitted by the Internal Revenue Code via a “Health Reimbursement Arrangement Plan” held not the same as health insurance premiums

Kathleen Rockwell et al v Broadalbin-Perth Central School District, Supreme Court, Fulton County, Judge Joseph M. Sise, Decision [RJI #27-1-2009-05091. Motion #13, April 18, 2011]

The Broadalbin-Perth Central School District was providing active employees and their dependents represented Broadalbin-Perth Teacher’s Association with health insurance. Upon retirement, the District continued to provide the same level of benefit to Association retirees and their dependents.

The District and the Association then entered into a “memorandum of understanding” that modified the District’s Health Insurance Plan. One of the key components of the new plan, and the focus of this litigation, was the creation of a “District-funded Health Reimbursement Arrangement" [HRA] providing for the payment of unreimbursed medical, dental, and other allowable expenses "permitted by the Internal Revenue Code."

The HRA provided for an annual contribution of $500 by the District for each employee in the negotiating unit to the individual’s HRA. It also featured a “rollover” permitting the HRA account to accumulate up to a $10,000 “maximum balance cap.” Upon retirement the plan provided for a one-time $3,000 HRA contribution. While a retiree could submit qualified medical expenses for reimbursement from his or her HRA fund, no additional contributions would be made to their HRA.

Contending that HRA with respect to retirees violated the mandates set out in Chapter 30 of the Laws of 2009,* Rockwell sued the District seeking a court order to compel the District to reimburse the retirees affected by the change for certain medical care expenses they had incurred as a result of the implementation of the HRA program.

The thrust of Rockwell's argument was that District's HRA contribution for retirees violated Chapter 30 insofar as it provided a different level of benefit for retirees than it did for active employees. Judge Sise disagreed.

The court said that HRA accounts only provide a means for active members to pay their unreimbursed medical and other qualified expenses and that the District’s contributions to an HRA account, or the possibility of underwriting the cost of insurance copayments from an HRA account, were not within the scope of, or in violation of, Chapter 30 as claimed by Rockwell.

Further, said the court, Rockwell failed to show that the retirees had sustained any diminution of health insurance benefits greater than those experienced by active employees as a result of the implementation of the HRA for both active employees and retirees of the District.

Indeed, said Judge Sise, the District demonstrated that “even considering the $500 annual HRA contribution … retirees are each still saving an average of $264.17 more per year [in health insurance costs] than each active employee” and dismissed Rockwell's petition.

* Chapter 30 of the Law of 2009 temporarily** extended the provisions of §1 of Chapter 566 of the Laws of 1967, which Chapter, in pertinent part, provided that BOCES and school districts could not diminish the health insurance benefits and employer contributions for such benefits provided to retirees “unless a corresponding diminution of benefits or contributions is effected from the present level … from the corresponding group of [active] employees….”

** N.B. Part B of §14 of Chapter 504 of the Laws of 2009 made this provision "permanent."

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