Proof of filing a timely application for disability benefits critical

Proof of filing a timely application for disability benefits critical

Jarek v McCall, 268 A.D.2d 654

It may prove critical to have proof that an application was filed with an agency as the Jarek case demonstrates.

John Jarek, a school custodian suffered a heart attack on January 31, 1993. Unable to work, Jarek resigned from his position on March 4, 1993.

Jarek filed an application for ordinary disability retirement with the New York State Employees’ Retirement System [ERS] within 90 days of his last day of service.

The application form was notarized and sent by first class mail to ERS. Not having heard from ERS, some six months later Jarek asked ERS to advise him of the status of his application. ERS told him that it never received his application form.

Ultimately, ERS denied Jarek ordinary disability retirement benefits because he had not filed a timely application form for benefits.*

Although an ERS hearing officer recommended that Jarek’s application be accepted since he had mailed it in a timely manner and through no fault of his own it had not be received by ERS, the Comptroller sustained ERS’s initial decision denying Jarek benefits. Jarek appealed.

Did the fact that Jarek mailed his application in a timely manner qualify him for benefits? The Appellate Division said because Jarek could not prove he had filed his application within 90 days of his last day of service, the Comptroller’s determination must be sustained.

The court pointed out that in other situations it had held that simply mailing an application for benefits does not constitute filing of the required application form. According to the ruling, filing for the purposes of establishing eligibility for benefits “only occurs upon actual delivery to and receipt” by ERS.

Thus, if the application is mailed, some means of demonstrating that the application was received by the System is critical to an individual’s ability to prove that his or her application for benefits was filed within the time period required.

Upholding the Comptroller’s decision that Jarek’s “act of mailing his application for ordinary disability retirement benefits” was not the equivalent of filing such an application, the Appellate Division said that this determination was reasonable and thus must be sustained under the circumstances.

The court said that “[w]hile the result is harsh, it is one the law compels.

The Appellate Division noted that Jarek claimed that he “did everything within his power to meet the 90-day deadline ....”

However, said the court, Jarek “failed to use available mailing methods which would have provided him with notice of [ERS’s] receipt (or lack thereof) of his application and further waited over six months to check on its status.”

It is clearly prudent to make certain that the individual can prove that he or she timely filed such an application.

Had Jarek used certified or registered mail -- or delivered his application in person and obtained a receipt -- he would have had a better chance of prevailing even if ERS had lost his application after receiving it. 

* Sections 62 and 63 of the Retirement and Social Security Law require a member to file his or her application for ordinary disability retirement benefits within 90 days of his or her last day of service. Accordingly, Jarek had to file his application within 90 days of March 4, 1993.

Considering the employee's personnel record in setting a disciplinary penalty

Considering the employee's personnel record in setting a disciplinary penalty

Thomas v Mt. Vernon, 267 AD2d 241

The Thomas ruling points out the elements that must be observed if the appointing officer wishes to consider an employee’s personnel record in setting a disciplinary penalty.

Robin Thomas was employed by the Mount Vernon Department of Public Safety. She was terminated from her position after being found guilty of habitual lateness. Thomas appealed the Commissioner of Public Safety’s determination.

Although the Appellate Division sustained the commissioner’s decision finding her guilty of the charges filed against her, it remanded the matter to him “for a new determination as to the penalty to be imposed” (Thomas v City of Mount Vernon, 249 AD2d 483).

When the original penalty - dismissal - was again imposed, Thomas again appealed. She contended that her “prior disciplinary record” was considered in setting the penalty.

Thomas argued that although the commissioner considered her prior disciplinary record, he failed to comply with the procedures set out by the Court of Appeals in Bigelow v Village of Gouverneur (63 NY2d 470) in such situations.

The Appellate Division observed that an employee’s prior disciplinary history could be considered in setting a disciplinary penalty if:

1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed; and

  

2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

The court said that there was nothing in the record to support Thomas’ claim that she was denied an opportunity to review her personnel record or to submit her objections in writing prior to the commissioner making his determination as to the appropriate penalty to be imposed. Accordingly, it ruled that the commissioner had complied with the standards set out by the Court of Appeals in Bigelow.

As to the penalty imposed - dismissal - the Appellate Division said that it was persuaded that the penalty met the Pell standard as it was not “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness” [Pell v Board of Education, 34 NY2d 222].

Commenting that Thomas’ conduct that resulted in this disciplinary action, together with her conduct underlying a previous suspension, “established a pattern of excessive absences and a failure to correct this behavior after her suspension,” the Appellate Division sustained her termination and dismissed her appeal.

Termination for violating the employee’s “last chance agreement” disqualifies individual for unemployment insurance benefits

Termination for violating the employee’s “last chance agreement” disqualifies individual for unemployment insurance benefits

Matter of Brown v Lincoln Ctr. for The Performing Arts, Inc., 2011 NY Slip Op 02982, Appellate Division, Third Department

Gloria Brown worked for as a security guard at a performing arts center for more than nine years. Brown had a history of disciplinary violations and after an incident in which she left her post without authorization, she and Lincoln Center entered into a “last chance agreement” that provided that her employment would be terminated if she committed further disciplinary infractions.

In December 2009, Brown met with representatives of the employer to discuss certain policy violations, including her failure to dress in the appropriate manner and to remain attentive at her post. The meeting was prematurely ended because of Brown’s behavior and another meeting was scheduled for early January 2010 with her union representative was present. Ultimately Brown was terminated and she applied for unemployment insurance benefits.

An Unemployment Insurance Administrative Law Judge concluded that Brown was terminated for misconduct and upheld the initial determination denying her unemployment benefits.

The Unemployment Insurance Appeal Board, however, overruled the Administrative Law Judge and awarded Brown benefits, finding that Lincoln Center “had not enforced the last chance agreement by allowing claimant to commit other disciplinary infractions without consequence prior to the December 2009 meeting.” Lincoln Center appealed and the court vacated the Board’s decision.

Noting that insubordinate behavior and, or, disrespectful conduct toward a supervisor has been held to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits, the Appellate Division found that the record contained ample evidence that Brown became loud, boisterous and disrespectful toward her supervisor during the December 2009 meeting. This clearly amounted to insubordination violative of the last chance agreement and was the equivalent of disqualifying misconduct.

As to the Board's finding that the Center “had not enforced the last chance agreement,” the Appellate Division said found “the record is devoid of evidence” establishing that the employer neglected to enforce the last chance agreement with respect to disciplinary infractions committed by Brown prior to the December 2009 meeting and that Brown was somehow misled thereby.

Although the Center’s director of human resources testified that Brown committed some minor violations, the nature and extent of them were not disclosed. However, said the Appellate Division, “it was the employer's prerogative” to determine if such acts constituted a level of misconduct warranting termination and the director stated that they did not.

Thus, said the court, substantial evidence does not support the Board's decision awarding Brown unemployment insurance benefits.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02982.htm