Reassignment pending disciplinary action

Reassignment pending disciplinary action

Gray v Crew, 267 AD2d 98

Prior to the filing of disciplinary charges against Dr. Simpson Gray, the New York City Community Superintendent advised Gray of the charges and “the nature of the complaints against him.” The Superintendent also told Dr. Gray that he would be transferred to the “district office” and reassigned to perform administrative duties pending the determination of the charges to be filed against him.

Gray challenged the transfer and reassignment to administrative duties but a State Supreme Court justice rejected his petition to rescind the superintendent’s decision. The Appellate Division, First Department, sustained the lower court’s dismissal of Gray’s petition.

The relevant law in this situation: subdivisions 7(c) and 8 of Section 2590-j of the Education Law. Subdivision 7(c) requires the community superintendent, “in advance of the filing of charges and specification,” to inform the teacher or administrator and the community board of “the nature of the complaint.” The court said that the community superintendent had complied with this requirement.

The court also noted that Subdivision 8 authorizes the community superintendent to transfer teachers and supervisors within the district without their consent for a number of reasons including “disciplinary action pursuant to subdivision 7....”

The Appellate Division said that “[c]ontrary to [Gray’s] claims” there were no procedural violations and the community superintendent “properly exercised” discretionary authority when Gray was transferred to the District Office pending the determination of disciplinary charges then pending against him.

The court also concluded held that Gray’s right to due process was not violated “since the discretionary transfer to which [Gray] was subject does not implicate due process concerns.”

Gray also argued that the reassignment caused him “irreparable financial or professional harm attributable to the Superintendent’s action.” The Appellate Division disagreed, pointing out “the transfer did not entail any reduction in [Gray’s] pay, and [Gray’s] lawsuit provides the basis for recovery of damages, if any.

The Appellate Division dismissed Gray appeal, setting out the following three reasons for its ruling:

1. Gray failed to show his probability of success on the merits;

2. Gray failed to prove any danger that he would suffer irreparable injury in the absence of the requested relief; and

3. Gray did not demonstrate that the equities balanced in his favor.

Determining the amount of an award by the Division of Human Rights following its finding that an employee suffered discriminatory retaliation

Determining the amount of an award by the Division of Human Rights following its finding that an employee suffered discriminatory retaliation

Matter of Roy C. Bell v New York State Div. of Human Rights, 36 AD3d 1129

Roy Bell was a probationary elementary school physical education teacher employed by the New Paltz Central School District. Denied tenure, Bell filed a complaint with the State Division of Human Rights alleging that he was sexually harassed by his supervisor and was shortly thereafter denied tenure in retaliation for making a complaint to his union representative concerning the matter.

The Commissioner of Human Rights dismissed the sexual harassment charge but sustained the charge that the District had unlawfully retaliated against Bell for complaining to the union by denying him tenure.

The Commissioner awarded Bell $171,491, less withholdings and deductions for federal, state and local income taxes, as damages for back pay for the period between 1990 through 1998. The Commissioner also awarded Bell $25,000 in compensatory damages

Bell appealed the award, contending that the award of back pay was insufficient because, among other things, it failed to include certain stipends that he would have earned had his employment continued.

In reviewing the award, the Appellate Division held that:

● Based on the evidence, there was no reasonable basis to conclude that Bell would not have continued coaching for additional compensation had his employment not ended and, as such, the back pay award must be recalculated to reflect those additional coaching stipends.

● The Commissioner should not direct the District withhold deductions for federal, state and local income taxes as federal courts have held that an employer should not be permitted to pay less in a back pay award simply by deducting the taxes it assumes that the employee will owe on the award, because that would give “a benefit it has not earned [to the employer, who] had the entire use of the money during the litigation” citing Curl v Reavis, 608 F Supp 1265. However, Bell would remain personally responsible for his tax liability for those years, taking into account all applicable allowances or deductions.

● The Commissioner took all relevant factors into account, including the financial difficulties that petitioner experienced upon separation from his employment, and rendered an award “reasonably related to the discriminatory conduct” that the agency found to exist.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2007/2007_00367.htm

Reimbursing NYSHIP Medicare-eligible retirees for Medicare Part B premiums

Reimbursing NYSHIP Medicare-eligible retirees for Medicare Part B premiums
Munger v Board of Educ. of the Garrison Union Free School Dist., 2011 NY Slip Op 05034, Appellate Division, Second Department

Carol Munger and other retirees of the Garrison Union Free School District sued in an effort to recover damages for breach of contract and for a judgment declaring that they are entitled to reimbursement for money they expended for Medicare Part B premiums since reaching the age of 65. Supreme Court dismissed Munger’s Article 78 petition.
Munger appealed and the Appellate Division reinstated that branch of her petition seeking reimbursement for Medicare Part B premium payments

Ruling that the issue of the school district's obligation to reimburse Munger and her co-plaintiffs for their Medicare part B premiums was not decided in the prior arbitration proceeding, the Appellate Division held that the arbitrator's award did not have preclusive effect on Munger's Article 78 action.

The court then explained that in considering a motion to dismiss a pleading for failure to state a cause of action, “the court must accept the allegations of the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.”

Noting that Munger had submitted documents relating to the school district’s obligation, “as members of the statewide health care consortium,” to reimburse their retired employees for Medicare Part B premiums paid by the retirees pursuant to Civil Service Law §167-a, the Appellate Division observed that Civil Service Law §167-a requires that employers participating in the New York State Health Program for State and Local Governments to reimburse retirees who are 65 years of age or older for Medicare premium charges.

According, said the court, Munger and her co-plaintiffs every possible favorable inference from their allegations and supporting documents, the Garrison Union Free School District’s motion to dismiss Munger's first cause of action alleging breach of the collective bargaining agreements and seeking declaratory relief should have been denied.


Randall Comments: The Munger case appears to be another example of a public employer participating in the New York State Health Insurance Program attempting to circumvent the mandates of Civil Service Law §167-a* A brief review of the genesis of §167-a may be illuminating.

Many years ago Thomas McCracken, the then director of the Department of Civil Service’s health insurance unit, concluded that the State could realize substantial financial benefits in terms of a reduction in the employer’s contributions to the New York State Health Insurance Program for State and Local Government [NYSHIP] if individuals and the dependents of such individuals that were Medicare eligible retirees had Medicare as their primary insurer.**

Mr. McCracken was instrumental in the drafting and adoption of Civil Service Law §167-a to this end. He also successfully advocated modifying NYSHIP's health insurance contracts to “exclude” from NYSHIP coverage those benefits otherwise available to Medicare eligible retirees and their dependents under Medicare. The reason for this: Medicare premiums were less than the premium costs that would have been otherwise required were the State to continue to provide these benefits to retirees and their dependents were NYSHIP the primary insurer.

In developing the plan, Mr. McCracken realized that, in effect, “excluding” such coverage for retirees in the NYSHIP contracts for health insurance mandated that the Medicare eligible retirees designate Medicare as their primary insurer or lose a significant portion of their health insurance coverage as the NYSHIP contracts would only provide Medicare-eligible retirees and their dependents with health insurance benefits otherwise available to active employee that were not covered by Medicare.

To maintain their same level of health insurance benefits, the Medicare eligible retiree would be required to pay the Medicare premium otherwise required for Medicare as well as the full “employee contribution” required for NYSHIP. Hence the amendment of the Civil Service Law to provide for the reimbursement of Medicare premiums to the Medicare eligible retirees set out in §167-a.

As an illustration, if the employee contribution for individual coverage in NYSHIP was $xxx per year, the Medicare eligible retiree would be required to pay $xxx for his or her NYSHIP participation and, in addition, pay $yyy per year for Medicare premiums for a total of $zzz.Thus the Medicare eligible retiree would be eligible for the same level of health insurance benefits otherwise available to the non-Medicare eligible individual under NYSHIP but would be required to pay more in premiums for the identical coverage.

To eliminate this adverse financial impact on Medicare eligible retirees, §167-a was enacted in order to provide for the reimbursement of Medicare premiums to Medicare eligible retirees by the retiree’s employer, thus, once again, limiting their cost for health insurance to the $xxx per year that was required of active employees and non-Medicare eligibles in NYSHIP while NYSHIP continued to reap substantial financial savings to the benefit of the State and NYSHIP’s participating employers.

Simply stated, but for the Medicare eligible retirees participating in Medicare as their primary health insurance carrier, the health insurance costs to the State, participating employers and NYSHIP enrollees, active and retired, for health insurance benefits through NYSHIP would be higher.

* Civil Service Law §167-a, in pertinent part, provides: Reimbursement for medicare premium charges. Upon exclusion from the coverage of the health benefit plan of supplementary medical insurance benefits for which an active or retired employee or a dependent covered by the health benefit plan is or would be eligible under the federal old-age, survivors and disability insurance program, an amount equal to the premium charge for such supplementary medical insurance benefits for such active or retired employee and his or her dependents, if any, shall be paid monthly or at other intervals to such active or retired employee from the health insurance fund.

In addition, 4 NYCRR 73.3(6) provides as follows: (6) The employer shall pay an additional sum each month equal to the current monthly Federal Medicare charge as the employer's share of the cost of coverage for each employee and dependent covered under the health insurance plan who is 65 years of age or older, while 4 NYCRR 73.1(b), Definitions, defines the term "employer" as follows: (b) The term employer or an employer shall include the State of New York (in all its departments and agencies and those departments and agencies of the State maintained and financed from special or administrative funds) and any participating employer. The term participating employer shall mean any public authority, public benefit corporation, school district, district corporation, municipal corporation or other public agency, subdivision or quasi-public organization which elects, with the approval of the President of the Civil Service Commission, to include its employees and/or retired employees in the plan.

** Eligible individuals are not required by federal law to participate in Medicare upon attaining age 65 but if the individual elects not to do so, he or she may be required to pay higher Medicare premiums should he or she later decide to enroll in Medicare.

The Munger decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05034.htm

Court directs the reopening of the disciplinary hearing after finding that a key witness recanted the testimony he gave at the hearing

Court directs the reopening of the disciplinary hearing after finding that a key witness recanted the testimony he gave at the hearing

Matter of Alarcon v Board of Educ. of S. Orangetown Cent. School Dist., 2011 NY Slip Op 05055, Appellate Division, Second Department

The Board of Education of the South Orangetown Central School District adopted the findings and recommendation of the disciplinary hearing officer who found Marco Alarcon guilty of certain charges of misconduct and incompetence, and terminated Alarcon's employment. 

Alarcon appealed and the Appellate Division annulled the Board’s determination on the law and remitted the matter to the Board “for a hearing at which the evidence of recantation of testimony by witness” against Alarcon is to be received and considered and a new determination made.

The Appellate Division found that the hearing officer's recommendation was largely based upon the testimony of the eyewitness, one Ramon Reyes, who, after testifying, but prior to the issuance of the hearing officer's report and recommendation, recanted his testimony.

Reyes alleged, in a sworn affidavit, that the testimony he had given at the disciplinary hearing was false and that he gave such false testimony because his supervisor directed him to lie.

The court said that under the circumstances Alarcon should be given the opportunity to recall Reyes to testify and directed that the Board receive “this newly discovered evidence” and make a new determination thereafter.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05055.htm

Limitations on collective bargaining under the Taylor Law

Limitations on collective bargaining under the Taylor Law

City of New York v Uniformed Fire Officers Asso. App. Div., First Dept., 263 AD2d 3, Affirmed, 95 NY2d 273

Sometimes an investigation into criminal activities by a governmental agency is claimed to have violated the rights of employees in a negotiating unit set out in a collective bargaining agreement. Do the employee's rights under negotiated agreement's provisions trump the procedures being employed by the investigating body?

This was one of the critical issues in the Uniformed Fire Officers Association case. The conclusion of the Appellate Division: parties to a collective bargaining agreement may not limit the powers or authority vested in a governmental agency not a party to the agreement.

The other significant issue: which is the employer for the purposes of negotiating and administering a collective bargaining agreement with a city department -- the city or its constituent department? Here the Appellate Division concluded that the City of New York was not the employer insofar as a collective bargaining agreement between a union and the New York City Fire Department was concerned.

New York City's Department of Investigation (DOI) was conducting criminal investigations involving New York City Fire Department personnel. One investigation focused on allegations that firefighters had attempted to obtain greater pension benefits by falsely claiming that he or she had suffered a disabling injury while on duty.

According to the opinion of the Appellate Division, the alleged “scheme” involved one firefighter calling in a false alarm to give a second firefighter, who had suffered an injury that was not work related, an opportunity to claim that the injury was, in fact, sustained while he or she was responding to the alarm.

DOI's investigation included interviewing members of Uniformed Fire Officers Association, Local 854 [union], who were questioned pursuant to subpoena. The union filed a grievance contending that DOI had violated terms and conditions of its collective bargaining agreement with the New York Fire Department. It demanded arbitration, contending that the interviews with its members were conducted in violation of the employee rights under its Taylor Law contract.

The union's theory ran as follows:

DOI was a City agency. Since the City was the employer, DOI was bound by the terms of the collective bargaining agreement it had negotiated with the City's Fire Department.

The union charged that DOI investigators violated the collective bargaining agreement when it did not provide its members with the contractual protections it had negotiated such as:

1. Giving the unit member prior written notice of the matter being investigated;

2. Providing unit members with the statement of “Miranda” type rights set out in the Taylor Law contract;

3. Although the unit member could be represented by an attorney, he or she was not permitted to have a union representative present; and

4. The unit members were not given “use immunity” with respect to any information DOI obtained in a subsequent criminal proceedings.

The City contested the arbitrability of the dispute before the City's Office of Collective Bargaining [OCB], arguing that it never agreed to arbitrate the procedures used by DOI. OCB was not persuaded and issued a determination, Decision No. 46-97, holding that the dispute was arbitrable.

The City objected and filed a petition in State Supreme Court seeking to have OCB's determination annulled. It contended that:

1. A collective bargaining agreement cannot, as a matter of public policy, supplant or impair DOI's investigatory procedures; and

2. Public policy considerations prohibit the negotiation of the DOI's criminal investigation procedures.

Justice Harold Tompkins agreed and vacated OCB's order. The union appealed.

The Appellate Division commenced its review by noting that “[n]ormally, a party to a valid arbitration agreement is required to submit to arbitration and to defer any challenge to the proceeding until an award is rendered, either by way of an application to vacate the award or in opposition to an application to confirm the award.”

Where, however, a statute, court rulings or public policy considerations preclude arbitration, the question of whether the dispute is within the scope of the arbitration provision is not reached.

Here, said the court, public policy and decisional law prohibit any interference with the authority of DOI to require a public employee to answer questions regarding activities that bear upon the performance of his or her official actions.

Accordingly, the extent to which provisions of a collective bargaining agreement apply to interviews conducted by the DOI is not an issue that may be submitted to arbitration.

The Appellate Division said that the union's theory that the City of New York was the “employer” insofar as its bargaining agreement with the Fire Department was concerned was incorrect.

According to the decision “while the Fire Department may bargain away certain of its own management prerogatives in reaching a labor accord with the Uniformed Fire Officers Association, it has no power to defeat or impair rights conferred upon another City agency by statute.”

In other words, the Fire Department, rather than the City of New York, was the “employer” for the purposes of negotiating and enforcing the collective bargaining agreement under the Taylor Law.

The union conceded that the employee rights provision of its labor contract should not be read to restrict investigations into the activities of union members that are conducted by the New York City Police Department, another City agency.

According to the Appellate Division's decision, Section 803(b) of the City Charter assigns broad duties to DOI to investigate “the affairs, functions, accounts, methods, personnel or efficiency of any agency.”

The court said that adopting the union's position would impermissibly compromise DOI's authority by limiting its examination of witnesses by the terms of the collective bargaining agreement between the union and the Fire Department.

The Appellate Division concluded that because DOI's prerogative to employ such investigative procedures as it deems appropriate may not be bargained away, there is no reason to submit to arbitration the question of whether the employee rights provisions of the union's collective bargaining agreement are binding upon the DOI.

The court affirmed Justice Tompkins' order annulling OCB determination directing the union and the City arbitrate their dispute over whether their collective bargaining agreement governs the DOI's investigatory procedures.

When the appeal reached the Court of Appeals, it sustained the Appellate Division’s determination.

Filing a notice of claim as required by law a condition precedent to maintaining the lawsuit

Filing a notice of claim as required by law a condition precedent to maintaining the lawsuit

McKie v LaGuardia Community College/CUNY, 2011 NY Slip Op 04755, Appellate Division, First Department

In this employment discrimination action, Supreme Court dismissed Shirley A. Zuri McKie, finding that she had failed to file a notice of claim within 90 days of the events giving rise to the lawsuit she had filed against LaGuardia Community College and the City University of New York as required by Education Law § 6224[1],[2].

The Appellate Division affirmed the lower court’s ruling, holding that contrary to McKie’s contention to the contrary, the requirement of filing a notice of claim within 90 days as a condition precedent to bringing suit against a community college of the City University of New York and applies to all claims asserted against such community college, not just tort and wrongful death claims.”

In addition, the court rejected McKie’s claim that Education Law §6224 violates the Equal Protection Clause of the New York State Constitution “because it affords less protection to employees of junior colleges than it does to similarly situated employees of senior colleges.”

The Appellate Division noted that similar constitutional challenges have been rejected in prior cases, citing Guarrera v Lee Mem. Hosp., 51 AD2d 867, Leave to appeal denied, 39 NY2d 942. In this instance, said the court, it was not persuaded that the two classes of employees at issue here are similarly situated, or that the distinctions drawn between employees of junior colleges and those of senior colleges are not rationally based.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04755.htm

Essentially there are not to be any “Star Chamber” proceedings for Section 75 hearings without a court order*

Essentially there are not to be any “Star Chamber” proceedings for Section 75 hearings without a court order*

A footnote to “Testifying in a court room closed to the public, Bobb v Senkowski, CA2, 196 F.3d 350,” concerns the issue of holding Civil Service Law Section 75 disciplinary hearings that are closed to the public.

The basic rule: Unless the employee asks that it be closed and that request is granted by the hearing officer or agreed to by the appointing authority, the public may not be barred from the proceeding.

As to any application to close the hearing to the public, in the absence of the employer's agreement to do so, the employee must obtain a court order closing the proceeding to the public. By the same token, should the appointing authority wish the disciplinary hearing to be closed to the public, it must obtain a court order to that effect absent the employee's agreement to have the hearing closed to the public.

In contrast, the Commissioner of Education, in implementing Section 3020-a, adopted a rule [see 8 NYCRR 82-1.9] mandating that the hearing be closed to the public unless the accused individual makes a timely request to the hearing officer to have the hearing open to the public.**

The courts, however, have taken a somewhat different view in cases involving disciplinary action taken against a "professional" by an "oversight" or licensing agency for alleged professional misconduct. As the Court of Appeals noted in McBarnette v Sobol, 83 NY2d 333: ... even though the complaints are submitted to the physician, because these proceedings have traditionally been regarded as confidential (see, Doe v Office of Professional Med. Conduct of N.Y. State Dept. of Health, 81 NY2d 1050; Matter of Johnston Newspaper Corp. v Melino, 77 NY2d 1, 10; Matter of Capoccia, 59 NY2d 549, 553), the complainants' interests in privacy regarding these matters have not been abandoned. The policy of confidentiality that we would recognize absent the statute, because such policy "serves the purpose of safeguarding information that a potential complainant may regard as private or confidential and thereby removes a possible disincentive for filing complaints," remains intact (Matter of Johnston Newspaper Corp. v Melino, supra, at 10-11). This confidentiality also protects the accused physician by preventing any unwarranted mar upon that professional's reputation (id. at 11).

The confidential and safeguarded nature of proceedings involving potential discipline of licensed professionals has been reaffirmed by our recent holding that disciplinary proceedings should not be open to the public and disclosure should not occur before the proceedings have been finally determined (see, Doe v Office of Professional Med. Conduct of N. Y. State Dept. of Health, supra; see also, Matter of J.P. Chassin, 82 NY2d 694 [proceedings involving ophthalmology specialist must remain confidential until finally determined]).

The courts [and in the case of educators, the Commissioner of Education] have apparently decided to treat professional disciplinary matters, i.e., those involving physicians, engineers, lawyers and other "licensed" professionals differently than employees in the public service, with a then finer distinction drawn between those in the classified service such as those whose disciplinary action is subject to Civil Service Law Section 75 and those employed in education [serving in an unclassified service position] who must be licensed to teach or perform administrative duties in the public schools with respect to disciplinary action taken pursuant to Education Law Section 3020-a.

It appears that in a McBarnette situation the courts take the position that a "professional's reputation" could be irreparably injured notwithstanding the individual's acquittal or exoneration of the allegations made while in an employee disciplinary action the acquittal of the individual typically results in reinstatement with back salary by the same employer. The Commissioner seems to fall between these two views, permitting an open hearing only in those instances where the accused demands the hearing be open to the public.

* The Star Chamber Court, located in Westminster Palace, London, England, is so named because its sky-like ceiling was painted with stars. Initially it conducted its proceedings in public. Through political evolution, by the reign of Charles I it “had become a byword for misuse and abuse of power,” frequently conducting its sessions in secret. In 1641 the court was abolished by the so-called “Long Parliament.” Today Star Chamber is a euphemism for arbitrary proceedings conducted in secret to the detriment of personal rights and liberty.

** The genesis of this rule may reflect the fact that the disciplinary files of the Department of Education are “confidential and not subject to disclosure at the request of any person, except upon the order of a court in a pending action or proceeding” (Education Law § 6510 [8]), and thus a Section 3020-a disciplinary hearing should not be automatically open to the public.

The Bobb decision is posted on the Internet at:

http://federal.court.com/f.3d/196/196.F3d.350.99-2259.html

 

Termination of a probationer

Termination of a probationer

Morgan v Kerik, 305 AD2d 288 [2003], lv denied 1 NY3d 507

The New York City Department of Corrections terminated Steven Morgan, a probationary correction officer, without a hearing. Morgan sued in an effort to annul his dismissal, contending that he was terminated in bad faith.

According to the record before the court, Morgan was discharged after having twice violated the department’s sick leave rules.

On one occasion, he failed to report for a scheduled appointment with its Health Management Division while on “medical monitored return status.” The second violation occurred when Morgan neglected “to log in” with the Health Management Division’s Sick Desk upon returning to his residence while on sick leave status.

These violations, said the Appellate Division, were sufficient to demonstrate that Morgan’s termination during his probationary period was not made in bad faith. The court sustained the lower court dismissal of his petition.

It well settled that a probationer may be discharged without a hearing after completing his or her minimum probationary period. The only limitations: such a dismissal cannot be made in bad faith or in violation of a law, rule or regulation.

A probationer who is dismissed after completing his or her minimum period of probation may be entitled to a “name clearing hearing” if he or she believes that the dismissal adversely affects his or her reputation in the community or his or her future employment opportunities. Prevailing in a name clearing hearing, however, does not give the individual any right to reinstatement to his or her former position or back salary.

In addition, a collective bargaining agreement may provide a probationer with “due process rights,” or set out pre-termination procedures to be followed prior to dismissing a probationer, not mandated by the Civil Service Law.

In any event, if an appointing authority wishes to dismiss a probationer before he or she has completed the minimum period of probation set for the appointment, case law indicates that the employee is entitled to due process and may not be discharged without first being given “notice and hearing” as though he or she held a tenured appointment.

A probationer may allege that he or she was disciplined or terminated in retaliation for “whistle blowing.” In such a situation, Section 75-b of the Civil Service Law requires that the individual be given a due process hearing and if he or she prevails, reinstated to his or her former position with back salary. Such a hearing is to be provided pursuant to Section 75 or, where appropriate, pursuant to the “disciplinary grievance procedure” set out in a collective bargaining agreement. 

Work related disability

Work related disability

Cocco v NYC Dept. of Trans., 266 AD2d 634

From time to time, an employee will file a workers’ compensation claim alleging that his or her work aggravated a pre-existing condition. In the Cocco case, the Appellate Division, Third Department, sets out the distinction courts make in considering such cases.

The Workers’ Compensation Board had approved Cocco’s claim for benefits based on his contention that his work for the New York City Department of Transportation as a bridge painter aggravated his preexisting chronic obstructive pulmonary condition. The Board ruled that Cocco had suffered an occupational disease within the meaning of Workers’ Compensation Law Section 3(2)(30). The Department appealed.

The Appellate Division said that in this type of case, it all depends on whether the employee’s disability resulted from (a) a previously active disabling condition; or (b) the aggravation of a condition, which was previously dormant and not disabling.

The Appellate Division said that “[t]o be compensable, the preexisting condition must be dormant and nondisabling and some distinctive feature of the employment must cause disability by activating the condition.”

Cocco and his expert both testified that Cocco’s pulmonary condition was dormant and nondisabling, and that “his exposure to noxious substances as a bridge painter for the employer acted on the preexisting condition in such a manner as to cause disability which did not previously exist.”

This, said the court, constituted substantial evidence for the Board’s determination and sustained the award.

Some guidelines followed by the courts when reviewing disciplinary arbitration awards

Some guidelines followed by the courts when reviewing disciplinary arbitration awards
Matter of Watt v East Greenbush Cent. School Dist., 2011 NY Slip Op 04795,
510841

In considering an appeal of an adverse disciplinary arbitration pursuant to Article 75 of the Civil Practice Law and Rules, the Appellate Division observed that:

1. Courts must review Education Law §3020-a disciplinary determinations by a Hearing Officer in accordance with the provision set out in §7511 of the Civil Practice Law and Rules, which section permits vacatur of an award on grounds of misconduct, abuse of power or procedural defects.*
2. Where the parties are required to submit the matter to arbitration, in contrast to submitting the matter to “voluntary arbitration,” courts must ensure that the award comports with due process and is supported by adequate evidence 
3. A court, when conducting its review of an arbitration award, must accept the Hearing Officer's credibility determinations.
4. The free speech rights of school employees are not violated when a school district
   imposes discipline on teachers for directing ethnic slurs or disparaging comments towards students in class.
5. Ethnic comments deemed offensive or embarrassing by students is a proper basis for initiating disciplinary action against a teacher.

* Courts have also vacated arbitration awards found to violate “strong public policy.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04795.htm