Request for reconsideration of an administrative determination does not toll the running of the statute of limitation

Request for reconsideration of an administrative determination does not toll the running of the statute of limitation

Matter of Bahr v MTA N.Y. City Transit Authority, Supreme Court, Kings County, 14 Misc.3d 1215(A)

The decision by Supreme Court Justice Francois A. Rivera in the Bahr case again points out that:

1. A proceeding pursuant to the statute of limitations set out in Article 78 of the Civil Practice Law and Rules (CPLR §217[1]) must be commenced within four months of the date that the decision complained of became final and binding; and

2. An administrative determination is considered final and binding for purposes of CPLR §217[1] when it has an impact on the aggrieved party and when the aggrieved party knows of the determination; and

3. An aggrieved party's requests for reconsideration of the administrative decision neither extends the statute of limitations nor tolls the statute of limitations from running.

Richard Bahr, Tier 4 member of the New York City Employees’ Retirement System [CERS] resigned from his position with the Metropolitan Transit Authority (MTA) in August 2000. CERS advised Bahr that he could vest his membership in the Retirement System if he had five years of credited member service and was within five years of normal retirement age when he left employment. Bahr qualified for vesting by purchasing enough service credit to meet the five years of member service requirement to be eligible to vest his retirement benefits..

New York City Transit Authority [NYCTA] provided employees such as Bahr with health insurance coverage through the New York State Health Insurance Program (NYSHIP). NYCTA also provided Tier 4 retirees with health insurance coverage upon retirement if the individual had at least ten years of service in NYCERS and was 62 years old or had five years of service in NYCERS and was 70 years old.

In August 2000, Bahr was not eligible to retire and resigned instead. He “vested” his eligibility for a retirement allowance upon attaining the minimum age for retirement.

When Bahr retired a few years later, the Employee Benefits Division of the New York State Department of Civil Service, which administers NYSHIP, wrote Bahr to advise him that he was eligible to continue his health insurance coverage with NYSHIP during his retirement. NYSHIP also told Bahr that he had been enrolled in the Empire Plan with dependent coverage. The cost Bahr’s health insurance coverage was paid by the participating employer, NYCTA.

As it turned out, the information NYSHIP sent to Bahr was incorrect.

NYCTA wrote to Bahr and told him that his post employment health benefits were granted in error. NYCTA explained that although Bahr qualified for a retirement allowance, having had five years of credited member service in CERS, he was ineligible for “retiree health insurance coverage” because his did not have at least ten years of credited service in the System. NYCTA then terminated Bahr’s health coverage with NYSHIP..

Supreme Court dismissed Bahr’s Article 78 petition as untimely.

According to the decision, in a letter dated July 23, 2004, NYCTA informed Bahr that his health coverage would end on August 1, 2004. The court pointed out that Bahr’s unsuccessful attempts to have NYCTA reconsider its decision did not extend or toll the four-month statute of limitations to commence an Article 78 proceeding.

The court said that although Bahr knew of NYCTA’s final determination on July 29, 2004, his petition challenging that decision served and filed more than four months after he knew of the final administrative determination. Accordingly, it was untimely.

Employee having a disability that poses a danger to co-workers is not “qualified” within the meaning of the ADA

Employee having a disability that poses a danger to co-workers is not “qualified” within the meaning of the ADA

Hutton v Elf Atochem North America, Inc., 273 F.3d. 884

According to the Hutton decision by the U.S. Circuit Court of Appeals for the Ninth Circuit, an individual with a disability who is shown to pose a danger to co-workers and others is not a “qualified individual” within the meaning of the Americans With Disabilities Act.

Norman Hutton, a diabetic, complained that Elf Atochem discriminated against him because of his disability in violation of the ADA and Oregon's disability discrimination law, [Oregon Revised Statutes, Sections 659.405 and 659.436 (1999).

Elf manufactures chlorine and related chemical products and had hired Hutton in 1986 with the knowledge that he had been diagnosed as a Type I diabetic. During his employment at Elf Hutton had a number of diabetic episodes. On one occasion he went into insulin shock while he was pumping chlorine from the storage tanks and had difficulty communicating with his co-workers.

Elf attempted to resolve the situation by having Hutton agree to meet specified conditions in order to continue his employment. These included his remaining under the care of a physician, providing evidence of a medical examination and laboratory blood assessment to Elf on a periodic basis; maintain a daily log related to his diet, his insulin intake, and certain other activities; monitor his blood sugar levels and to regulate his insulin intake in accordance the recommendations of a physician.

Hutton did not fully cooperate and ultimately he was suspended subject to his complying with the elements set out in the agreement. He sued, only to have a federal district court find that he was not a “qualified person with a disability” under the ADA. The court said that Hutton had failed to produced evidence demonstrating that he was able, with or without an accommodation, to perform the essential functions of his position -- chlorine finishing operator position.

In making its determination the court found that Hutton's diabetes created a risk of significant harm to himself and others, thereby disqualifying him from the position.

The Circuit Court agreed in part, holding that Elf's “direct threat” defense was valid insofar as his posing a threat to co-workers was concerned. It said that such a defense is permitted under the ADA, citing the “Defenses” section of the law.

The Equal Employment Opportunity Commission [EEOC] sets out the following guidelines concerning “direct threat” for the purposes of the ADA: Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

The court rejected EEOC's view that the direct threat defense is available to an employer with respect to its contention that the individual poses a safety risk to himself or herself. In contrast, the Ninth Circuit said that where, as in Hutton's situation, there is no dispute that a significant physical or mental lapse by Hutton as a result of a diabetic episode could result in substantial harm to his co-workers and others, the direct threat defense was available to Elf.

Whether or not an individual poses a “direct threat” to others is to be determined on the basis of an individualized assessment of the individual's present ability to safely perform the essential functions of the job supported by a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.

Among the factors to be considered in making such a determination:

1. The duration of the risk;

2. The nature and severity of the potential harm;

3. The likelihood that the potential harm will occur; and

4. The imminence of the potential harm.

Since a claim of “direct threat” is an affirmative defense, the employer bears the burden of proving that an employee constitutes a direct threat.

In Hutton's case there was no dispute that his employment posed some risk of potential harm to others. Was this risk of a sufficient magnitude and probability to disqualify Hutton from the chlorine finishing operator position?

Finding that an individualized assessment of each factor in the EEOC's four-factor test supports the conclusion that Hutton would pose a direct threat to his co-workers and others, the court sustained the lower court's dismissal of Hutton's complaint.

The court ruled that Elf had met the “direct threat” test established by EEOC with respect to Hutton's co-workers and other by demonstrating that (1) the duration of the risk would exist for as long as Hutton held the chlorine finishing operator's job; (2) the nature and severity of the potential harm is catastrophic -- many lives could be lost; (3) although the likelihood that the potential harm will occur is small, whether and when it will occur cannot be predicted; and (4) the imminence of the potential harm is unknown because of the unpredictability of Hutton's condition.

Union use of school e-mail in connection with a school board election

Union use of school e-mail in connection with a school board election

Appeal of John M. Himmelberg and Andrew J. Little, Decisions of the Commissioner of Education, Decision No. 15,490

Himmelberg and Little, unsuccessful school board candidates, challenge certain events related to a school board election. The Commissioner sustained the appeal in part.

Essentially, Himmelberg and Little complained that the president of the Fairport Education Association, the union representing the district’s teachers, used his district e-mail account to send e-mail to the district e-mail accounts of all union members advising the members of the union’s endorsement of two candidates for seats on the board. The e-mail also set forth the reasons the union chose not to endorse Himmelberg and Little.

In response to Himmelberg’s and Little’s objection, the school superintendent said that the union had the contractual right to use the district’s e-mail system to communicate with its members and that neither he nor the board endorsed the union president’s message.

After the election, the union distributed a newsletter to teachers via their district mailboxes. The newsletter included a message from the union president discussing the “hard core haters leading the effort against our school district.” While the newsletter did not refer to either Himmelberg or Little by name, it did name individuals the union president previously had identified as associated with them

Ultimately, Himmelberg and Little appealed to the Commissioner. The Commissioner granted the appeal in part. He said that although a board of education may provide informational material to the voters concerning a vote or election, the use of district resources to distribute materials designed to solicit favorable votes violates the constitutional prohibition against use of public funds to promote a partisan political position. Further, said the Commissioner, “Even indirect support, such as a school board giving a private organization access to its established channels of communication to espouse a partisan position has been deemed improper” and “lending indirect support to the private organization’s efforts to influence the vote, permitting such use of school facilities also lends an appearance of prohibited partisan activity by the school district, which should be avoided.”

Accordingly, the Commissioner found that under the facts of this case, the school district improperly permitted the union to use district resources to advocate the union’s position. Although the district asserted that the union’s use of e-mail was undertaken pursuant to its contract and was consistent with the parties’ longstanding practice, the Commissioner said that the parties’ collective bargaining agreement cannot authorize unconstitutional partisan use of district resources.

In contrast, the Commissioner said that “The post-election newsletter … did not constitute improper advocacy. While it contained strong, potentially divisive language, it was not directed at a specific question before the voters and was directed to union members only.

The Commissioner ordered the district to review its policies to ensure that adequate safeguards are in place to guard against improper partisan political activity.

Employee terminated after being found guilty of moral turpitude and dishonesty

Employee terminated after being found guilty of moral turpitude and dishonesty

Health and Hospitals Corporation v Saavedra, OATH Index #1404/11 [Modified as to the penalty to be imposed]

OATH Administrative Law Judge Faye Lewis ruled that a community associate could be sanctioned for off-duty misconduct based upon her admission that she took $4,680 from the City retirement system (NYCERS) that she knew did not belong to her.

The woman had taken a loan from NYCERS and a check was mailed to her even though the money had already been electronically deposited into her account. She cashed the check knowing she was not entitled to it.

ALJ Lewis found a nexus between the conduct and her job, i.e., she was able to obtain the pension loan from NYCERS because she works for the City of New York.

Judge Lewis noted that crimes of larceny are indicative of moral turpitude, which may constitute a basis for discipline.

As to the penalty to be imposed, the Administrative Law Judge found the employee’s expression of remorse at trial to be sincere and noted that the misconduct was not premeditated, but a crime of opportunity and recommended that a 60-day suspension without pay be imposed by the appointing authority.

However, Raquel Ayala, as the designee of Antonio Martin, Kings County Hospital Center's Executive Director, accepted Judge Lewis’ findings of fact but disagreed with Judge Lewis' recommended penalty of a sixty (60) day suspension and imposed the penalty of termination,* concluding that the employee had breached her employer’s trust which, said Ms. Ayala, is essential to anyone’s employment.

Ms. Ayala noted that her determination may be appealed by application to the Personnel Review Board or in accordance with Article 78 of the Civil Practice Law and Rules.

* The courts have ruled that the appointing authority may impose a harsher penalty than the penalty recommended by a disciplinary hearing officer [see Alamio v Ambach, 91 AD2d 695 and Henry v Village of Palmyra, 105 AD2d 1159 for examples of such actions and the standards to be followed in such cases].

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1404.pdf