Retaliatory dismissal

Retaliatory dismissal

Lipphardt v Durango Steakhouse, 267 F.3d 1183

An employee has a consensual intimate relationship with a co-worker. After discontinuing the relationship the employee tells the employer that he or she is being subjected to harassment by the co-worker and as a result, is terminated. These were the events leading to the Mary Hope Flipchart’s lawsuit against Durango Steakhouse.

The issue before the Circuit Court of Appeals: is an employee who was formerly involved in an intimate relationship with a co-worker precluded from bringing a claim against the employer for retaliatory discharge if the employee is fired after reporting former boyfriend's or girlfriend's harassing conduct to their mutual employer?

Lipphardt complained that after ending her relationship with co-worker Donald Knuth, she began having difficulties with Knuth at work. According to Lipphardt, Knuth consistently attempted to convince Lipphardt to resume their intimate relationship. After a number of off-the-job episodes, Lipphardt reported Knuth's actions and their impact on her to her supervisor and requested a transfer.

According to the decision, while Lipphardt was on a previously scheduled vacation, Knuth was told that the company was considering firing both of them. Knuth alleged that the general manager then asked him if he knew anything that could get Lipphardt fired, as the restaurant would rather keep him and “get rid of the bitch.” Knuth told the general manager that Lipphardt had given free food to the employees of a nearby tanning salon in exchange for tanning services. Lipphardt was fired upon her return from vacation.*

Lipphardt filed complaint alleging hostile work environment, sexual harassment, quid pro quo sexual harassment, retaliation, and negligent retention. The district court granted Durango's motion for summary judgment on the quid pro quo sexual harassment charge and, at the close of evidence, its motion for judgment as a matter of law on the claim of negligent retention.

The two remaining issues were submitted to the jury. The jury returned a verdict in favor of Durango on the hostile work environment and sexual harassment issues but in favor of Lipphardt on the issue of retaliation.

The district court granted Durango's motion to vacate the jury's determination in favor of Lipphardt's with respect to her retaliation complaint “as a matter of law.” Lipphardt appealed.

The Circuit Court disagreed with the lower court's ruling overturning the jury's decision. It said that “[f]ollowing the clear instructions it was given, the jury returned a verdict recognizing Lipphardt's belief that she was the victim of harassment as objective. This decision was not improper as a matter of law, as a prior intimate relationship, while important, is not a determinative factor in a sexual harassment analysis.”

It also reversed the district court's order granting Durango judgment as a matter of law on Lipphardt's claim of retaliation. Further, said the court, it was remanding the matter to the district court to enter judgment for Lipphardt and award damages as decided by the jury.

* It was established at trial that a different employee was trading food for tanning services and that Knuth had never actually seen Lipphardt engage in this practice when he made the allegation. No one followed up with Knuth regarding his allegation before Lipphardt was dismissed.

Settlement agreements

Settlement agreements

McLean v Village of Sleepy Hollow, 166 F. Supp. 2d 898

What can an individual do if the terms of a settlement agreement between the employee and the employer fail to provide the benefit or result expected by the employee? In the absence showing that agreement to the settlement was the result of some fraud on the part of the employer, very little, as the McLean decision by a federal district court judge demonstrates.

Gary McLean was a part-time Buildings Code Enforcement Officer in the Village of Sleepy Hollow. He was also employed full time in another position and in view of this, he was permitted to set his own work schedule. McLean was terminated from his position following the election of a new mayor. He sued in federal district court, contending that he had been fired in retaliation for his vocal support of the previous administration.

The Village and McLean settle the case. McLean was to be reinstated with back pay and his attorneys' fees paid -- all the relief to which he would have been entitled had he won his lawsuit. Settlement documents were signed and the Court “so ordered” the Stipulation and Order of Settlement.

The settlement included the following provision:

“IT IS FURTHER AGREED that the plaintiff will be re-employed by the Village of Sleepy Hollow at the annual salary of $10,000 per annum as a part-time Code Enforcement Officer subject to all terms and conditions of employment attendant to that position.”

McLean was told that he could return to work by letter dated June 14, 2000. Prior to this date, however, the Mayor endorsed a recommendation that Building Code Inspectors be required to work between the hours of 9 a.m. and 12 p.m. Mondays through Fridays. As McLean's full time job required that he be at work 7:30 a.m. and 3:30 p.m., he was unable to meet the Village's new work schedule set for his position. The possibility of a new policy changing the work hours of his job was not mentioned to McLean during the settlement negotiations.

Although the Village offered McLean the option of working any three successive hours between 8:30 AM and 4:30 PM on weekdays, this would not solve his problem and he did not return to work as contemplated by the settlement. The Village subsequently filed disciplinary charges against McLean for failure to return to work “as scheduled.” The hearing officer ruled that the Village had acted within its authority when it changed McLean's work schedule and recommended that McLean be dismissed from his position because he failed to report for work.

The Village Board adopted the hearing officer's findings and recommendations and terminated McLean. McLean filed an Article 78 in state supreme court challenging the Village's action. He also asked the federal district court to enforce the terms of the settlement order.

McLean's argument: he would never have settled the case if he had known that he would have to give up his full-time job in order to go back to work as a Building Code Examiner. He contended that the use of the phrase “subject to all the terms and conditions of employment attendant to that position” in the Stipulation and Order means that the Village had to reemploy him on the terms that were in effect at the time he agreed to settle the case.

The district court said that although the “situation is extremely unfortunate” and McLean did not get what he thought he was entitled to under the settlement to which he agreed, it agreed with the Village that his motion must be denied.

Although it is clear that the court has subject matter jurisdiction to enforce the settlement, “subject matter jurisdiction was only the first hurdle to adjudication” in this case. The federal judge pointed out that McLean participated in a civil service disciplinary hearing, where he litigated and lost the issue of the Village's right to dismiss him notwithstanding the terms set out in the settlement agreement.

According to the ruling, whether the hearing officer's finding against McLean bars his obtaining a different interpretation of the meaning of the relevant language in the settlement Stipulation in federal court is a complicated question. While any decision by the New York State Supreme Court in the Article 78 proceeding would be entitled to preclusive effect under the Full Faith & Credit Clause, regardless of whether the Supreme Court ruled on questions of fact or of law, here there is only the administrative determination. Is an administrative hearing officer's unreviewed findings entitled to preclusive effect under the circumstances?

According to the ruling, this depends on whether the challenged elements constitute findings of fact, where preclusive effect is accorded, or findings of law.

The judge said that he did not have to decide if there was any “preclusionary effect” with respect administrative findings of law. Instead the court held that even if McLean could relitigate the meaning of the settlement agreement, he agreed “with the conclusions of the hearing officer.”

McLean conceded that the Village had the right to set the terms and conditions of employment, including the work schedule, of its employees. In the words of the court:

The Village is of course free to waive its rights in this regard, but any such waiver must be apparent from the face of the contract between McLean and Sleepy Hollow. The terms of the Stipulation and Order are artless (at least from McLean's perspective), but the relevant sentence is not ambiguous and cannot be read as a waiver by the Village of its right to alter the terms and conditions of its employees' jobs. The Stipulation does not require the Village to maintain the terms and conditions of McLean's employment as they were at the time the settlement was negotiated. It says only that McLean will be reemployed on the terms and conditions that are “attendant to his position.” While the words “from time to time” do not appear after the word “position,” they do not have to, because the usual rule is that job terms can be changed. McLean's reading of the Stipulation, not the Village's, is the one that departs from the usual rule; thus McLean's reading cannot be adopted unless it is clearly spelled out in the contract. It is not. End of discussion.

This, said the court, leads to a harsh result. However, the fact that McLean and his counsel assumed that everything would go back to the way it was, -- i.e., “that they subjectively intended the settlement would restore the status quo ante” -- is insufficient to bind the Village when that subjective intention is not clear from the objective manifestation of McLean's intent - the words of the Stipulation and Order.

Imprudent action bars accidental disability benefit

Imprudent action bars accidental disability benefit

Sullivan-Dorsey v NYC Police Pension Fund, 288 AD2d 131

The Board of Trustees of the New York City Police Pension Fund rejected the application for accidental disability benefits filed by Laura Sullivan-Dorsey, a New York City police officer. Sullivan-Dorsey appealed, contending that she was injured in the line of duty. She claimed that she was entitled to such disability benefits as a result of her falling from a building ledge while at work.

According to the decision, Sullivan-Dorsey was injured when she fell from a second-story window ledge while attempting to gain access to an adjoining office at the Queens Narcotic District Office.

Sustaining the Board's decision denying her application for accidental disability benefits, the Appellate Division said that Sullivan-Dorsey's injury was not the result of an “accident” within the meaning of City of New York Administrative Code Section 13-252 ... but of her own conscious and highly imprudent decision to attempt to gain entry to an office by means of a window ledge.

Jury’s decision in favor of plaintiff based on speculation rather than logical inference based on the evidence vacated

Jury’s decision in favor of plaintiff based on speculation rather than logical inference based on the evidence vacated
Miller v Nassau County Civ. Serv. Commission, 2011 NY Slip Op 05032, Appellate Division, Second Department

Roberta Miller, claiming that she was laid off in bad faith, sued the Nassau Civil Service Commission and others seeking reinstatement to her former position and back pay.

Although the jury ruled in her favor, Supreme Court set aside the jury’s decision as contrary to the weight of the evidence and directed that a new trial be held.

Nassau appealed, contending that Supreme Court should have dismissed the action against it “as a matter of law.”

The Appellate Division agreed, holding that Supreme Court should have granted Nassau’s motion. The court said that “A finding by the jury that [Miller] was singled out for layoff due to her political affiliation could only have been reached by the jury based upon speculation, rather than logical inferences drawn from the evidence.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05032.htm

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

Duty of fair representation

Duty of fair representation

Hickey v Hempstead Union Free School Dist., 36 AD3d 760

Robert L. Hickey’s lawsuit against the Hempstead Union Free School District involved provisions in the collective bargaining agreement negotiated between his union, the Hempstead School Administrator’s Association, and his employer, the Hempstead Union Free School District.

Supreme Court dismissed Hickey’s petition after finding that he “lacked standing” to maintain such an action. The Appellate Division agreed.

The Appellate Division pointed out that a union member generally has no individual rights under a collective bargaining agreement that he or she can enforce against an employer unless:

1. The negotiated agreement, by its terms, permits an individual to proceed directly against the employer to enforce a term or condition set out in the agreement, or

2. The union fails in its duty of fair representation.

As the collective bargaining agreement did not provide for negotiating unit members taking direct action against the school district, Hickey could only maintain his action if he could show that the Hempstead School Administrator’s Association violated its duty of fair representation with respect to his claim.

Here, said the court, Hickey’s petition did not contain any allegation that the Association had breached its duty of fair representation. Indeed, said the Appellate Division, in response to Hickey’s filing an improper practice charge against the Association with the Public Employment Relations Board (PERB), PERB dismissed his complaint, finding that the union had not breached its duty of fair representation. Hickey never appealed PERB’s determination.

The Appellate Division concluded that the Supreme Court properly granted the school district’s motion to dismiss the complaint on the ground that the Hickey lacked standing to maintain the action.

The decision if posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2007/2007_00493.htm

Teacher disqualified for unemployment insurance benefits after refusing substitute position

Teacher disqualified for unemployment insurance benefits after refusing substitute position

Kurtz v Henrietta Central School District v Commissioner of Labor, 37 AD3d 895

An art teacher was employed by the Rush Henrietta Central School District during the 2003-2004 school year. Her position was abolished effective July 1, 2004. The District, however, offered her a position as a long-term substitute art teacher for the first semester of the 2004-2005 school year to replace a teacher who was on maternity leave. The District made the offer in May 2004 and again in July 2004, but Kurtz did not accept it.

Kurtz had received over $4,000 in unemployment benefits when the district filed an objection with the Unemployment Insurance Board. After a hearing, Kurtz’s claim was disallowed “because she refused an offer of suitable employment without good cause.”

When Kurtz appealed, the Appellate Division sustained the Board’s determination, holding that “A claimant who rejects employment for which he or she is reasonably suited by training and experience will be disqualified from receiving unemployment insurance benefits.”

As Kurtz had the qualifications necessary to perform the duties of a long-term substitute art teacher, the court said that fact that it was a temporary position was not a legitimate reason for her to refuse to accept it.

Noting that the District’s human resources director testified that Kurtz would have received wages and benefits similar to those she received as a probationary art teacher, the Appellate Division said that:

Claimant's misunderstanding of the terms of the offer and her failure to make further inquiry concerning the same do not excuse her inaction. Furthermore, claimant's admitted failure to disclose the job offer when certifying for benefits supports the Board's finding that she made a willful misrepresentation and its decision to charge her with a recoverable overpayment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2007/2007_00717.htm

New York Governor Andrew Cuomo introduces pension reform legislation

New York Governor Andrew Cuomo introduces pension reform legislation

Source: Office of the Governor

On June 9, 2011 Governor Andrew M. Cuomo introduced pension reform legislation that would impose a new Tier VI for future employees of the State and its political subdivisions other than New York City. Estimated savings of $93 billion over the next 30 years.

The bill also includes, at the request of Mayor Michael R. Bloomberg, a separate pension reform proposal for New York City and the uniformed services.

The new pension tier will increase the retirement age for new employees from 62 to 65, increase employee pension contributions and end so-called pension padding where employees accumulate substantial amounts of overtime in their final years of service to increase their pension.


Key elements of the proposed legislation:*

1. Raises the retirement age from 62 to 65

2. Ends early retirement

3. Requires employees to contribute six percent of their salary for the duration of their career

4. Provides 1.67 percent annual pension multiplier

5. Vests after 12 years instead of 10 years

6. Excludes overtime from final average salary

7. Uses a five-year final average salary calculation with an 8 percent anti-spiking cap

8. Excludes wages above the Governor's salary of $179,000 from the final average salary calculation

9. Eliminates lump sum payouts for unused vacation leave from the final average salary calculation

10. Prohibits the use of unused sick leave for additional service credit at retirement

The proposed reform of the state pension system would impact new hires by the state and local governments, including school districts.

The City of New York’s proposed pension reform plan would cover new employees of New York City, including the uniformed services.

The text of the proposed bill is available here. 

The text of the proposed bill memo is available here.

* Changes applicable to individuals eligible to elect to participate in the several optional retirement plans available to certain employees of the State Department of Education, the State University of New York and its community colleges and other entities are set out in Sections 25, 26 and 27 of the proposed legislation.

Policy limits on vacation travel during FMLA leave

Policy limits on vacation travel during FMLA leave

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

A federal district court recently upheld an employer's policy requiring an employee to remain in the immediate vicinity of their home as a condition of receiving paid sick leave, including during periods when the employee is on FMLA leave.  In limited circumstances, the policy allowed an employee to travel outside of the immediate vicinity of their home for medial treatment, family needs, and with the prior consent of the employer.  Violation of the policy could result in termination of paid leave, as well as discipline. 

Denise Pellegrino was employed by the Communications Workers of AMerica (CWA) in a clerical capacity.  Pursuant to the CWA FMLA-Sick Leave Policy, Pellegrino notified the CWA that she needed leave for surgery.  The CWA approved Pellegrino's request for FMLA leave, and notified her that she would be required to substitute paid sick leave for the absence.  While on approved leave, Pellegrino traveled to Cancun, Mexico, where she stayed for a week.  There was no medical or family reason for the trip, nor had she secured the CWA's prior consent to travel outside of the immediate vicinity of her home during leave. The CWA terminated Pellegrino for violation of the CWA's leave policies. 

Pellegrino filed suit alleging that her termination violated the FMLA.  CWA moved for summary judgment alleging that the FMLA did not protect Pellegrino from termination for a reason unrelated to her FMLA leave- namely, violation of the CWA policy restricting unapproved travel for someone receiving paid sick leave benefits.  CWA argued that it would have terminated her irrespective of her status under the FMLA as it had the right to enforce its policies restricting unapproved travel where an employee is on paid sick leave.   The Court agreed with the CWA.

The Court confirmed that the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of FMLA leave.  So long as employer policies do not conflict with or diminish an employee's FMLA rights, the FMLA, the Court found, "in no way prevent an employer from instituting policies to prevent the abuse of FMLA leave."  Here, CWA terminated Pellegrino because she violated CWA's Sickness and Absenteeism policy by leaving the immediate vicinity of her home without prior approval, or for any other permissible reason.  The Court reasoned that the policy served the legitimate purpose of ensuring that the privilege of paid sick leave is not abused. The Court also found that the policy does not discourage or prevent CWA employees from taking FMLA leave. 

The Court awarded summary judgment to the CWA for violation of the CWA travel restriction policy, a legitimate reason independent of her use of FMLA leave.

Mr. Bosland Comments: The FMLA does not prohibit an employer from enacting and enforcing leave and attendance policies to control leave abuse even where, as here, those policies may apply to FMLA leave.  Remember, under federal law, FMLA leave is always unpaid.  The only way an employee can get paid while on FMLA leave is pursuant to an employer's paid leave policy.  Employers are not required to offer paid sick or personal leave, but many do.  An employer's paid leave policy may not single out FMLA leave for special treatment.  Rather, as in Pellegrino, the paid leave policy should generally apply to all absences due to sickness or disability, which may also encompass FMLA leave.

In a fascinating footnote, the Court in dictum opined that, even if an employer did not have a formal policy restricting travel during FMLA leave, "no reasonable jury could find that an employer acts illegitimately or interferes with FMLA entitlements when that employer terminates an employee for taking a week-long vacation to Mexico without at least notifying the employer that her doctor had approved the travel or that she would be out of the country."  

I note that the FMLA generally does not require an employee on approved FMLA leave to notify an employer of their whereabouts during leave.  The Court's dictum would appear to impose such a requirement where none exists.  Absent a policy, I would not counsel employers to take adverse actions against employees for failure to provide notice of their intent to leave the vicinity of their homes during FMLA leave.    

The decision is consistent with a long line of cases allowing employers to impose and enforce neutral leave and attendance policies to curb leave abuse, even where the leave is covered by the FMLA.  

   

Pellegrino v. Communications Workers of America, AFL-CIO, Civil Action No. 10-0098 (W.D. Pa. May 18, 2011) http://op.bna.com/dlrcases.nsf/id/jaca-8h2m25/$File/Pellegrino.pdf

Former employee entitled to a name clearing hearing upon satisfying the “stigma plus” test

Former employee entitled to a name clearing hearing upon satisfying the “stigma plus” test

Knox v New York City Dept. of Educ., 2011 NY Slip Op 04735, Appellate Division, First Department

State Supreme Court, New York County rejected the New York City Department of Education’s motion to dismiss the petition filed by Dr. Tulsa Knox challenging the Department’s decisions that Dr. Knox was ineligible for re-employment, and granting Dr. Knox’s petition to the extent of remanding the matter for a name-clearing hearing.*

The Appellate Division unanimously affirmed the Supreme Court’s ruling.

The court said that Dr. Knox had demonstrated "stigma plus," i.e., defamation by the government, coupled with a likelihood of dissemination of the stigmatizing material that could significantly impair her ability to gain employment as a school psychologist in the future.

The Appellate Division said that the placement of Dr. Knox’s name on the Department’s  "Ineligible/Inquiry List" and certain adverse information concerning Dr. Know had been  disseminated “not only within the Department of Education, but also to the Bronx County District Attorney's Office and the State Department of Education.” This, said the court, satisfied Dr. Knox’s burden of showing “stigma plus”.

* N.B. Absent a violation of a constitutional or statutory provision, reinstatement is not an available remedy to an individual even if vindicated at a name clearing hearing.

The decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04735.htm

Refusal to answer questions during an administrative disciplinary investigation

Refusal to answer questions during an administrative disciplinary investigation

Matter of Eck v County of Delaware, 36 AD3d 1180

There were many issues considered by the Appellate Division in deciding Eck’s appeal of an adverse Section 75 Civil Service Law disciplinary determination.

One issue involved the law regarding compelling an employee to answer questions concerning his performance against his will in the course of a pre-disciplinary investigation that could result in administrative disciplinary action and, or, criminal action being taken against the individual.

Kenneth R. Eck, Jr., a deputy sheriff with the Delaware County Sheriff’s Department, was served with Section 75 disciplinary charges.

Charges filed against Eck included the allegation that he had conducted an unauthorized investigation of two Delaware County employees, one of whom was Eck’s former wife, because of Eck’s suspicion that the two were involved in a romantic relationship.

Among the several charges leveled against Eck was one that alleged that he refused to answer questions regarding his activities during the Sheriff’s investigation of incident.

The Section 75 Hearing Officer found Eck guilty of the charges filed against him. After reviewing Eck’s personnel file, the Hearing Officer recommended Eck be dismissed from his position. The County adopted the Hearing Officer’s findings and recommendation and terminated Eck.

In rejecting Eck’s appeal seeking reinstatement to his former position, the Appellate Divisions considered a number of elements raised by Eck in an effort to have the disciplinary decision vacated. One element concerned Eck’s argument that the disciplinary action was unlawful because it compromised his Fifth Amendment constitutional right against self-incrimination.

In response to Eck’s claim that he could not be disciplined for invoking his Fifth Amendment privilege against self-incrimination when he refused to answer certain questions posed by the attorney representing the County during the investigation of his “activities during off-duty hours,” the Appellate Division pointed out that:

1. It is understood that the Fifth Amendment privilege against self-incrimination protects an individual not only in the context of a criminal trial, “but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”

2. An individual’s “[a]nswers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying”.

3. In a situation where a public employee is compelled to answer questions or face dismissal, the individual’s responses are automatically cloaked with immunity.

Accordingly, said the court, “where a public servant . . . refuses ‘to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity, . . . the privilege against self-incrimination would not [be] a bar to his dismissal’”

In this instance the court found that “the questions were narrowly tailored to the matters under investigation and [Eck] was compelled to answer them on pain of termination, his answers would have been automatically cloaked by immunity.”* In view of this, the Appellate Division concluded that Eck’s “assertion of his Fifth Amendment privilege did not bar disciplinary action against him.”

This, together with the Hearing Officer’s finding that Eck (1) used his position to obtain information about a co-workers whereabouts in furtherance of his own unauthorized investigation; (2) his surveillance endangered the co-worker, who often worked undercover; (3) he disparaged the Sheriff and the Sheriff’s Department in the presence of other officers and civilians; and (4) he disclosed information about his disciplinary hearing after being instructed not to discuss it, persuaded the Appellate Division that under the circumstances, “the penalty of termination is not disproportionate to these offenses.”

* This is often referred to as “use immunity.”

Employee organization may, through collective bargaining, negotiate away an employee’s statutory right to a disciplinary procedure provided an alternate procedure providing for administrative due process is available to the individual

Employee organization may, through collective bargaining, negotiate away an employee’s statutory right to a disciplinary procedure provided an alternate procedure providing for administrative due process is available to the individual
Matter of Hickey v New York City Dept. of Education, 2011 NY Slip Op 04541, Court of Appeals

Helen Hickey and Rachael Cohn, tenured teachers in the New York City School system, commenced Article 78 proceedings against the Board of Education seeking court orders compelling the Board to expunge "letters of reprimand" from their respective personnel files, contending that the Board’s actions failed follow Education Law §3020-a disciplinary procedures. Both letters had been placed in their respective personnel files and indicated that the matter "may lead to further disciplinary action."*

The Board contended that the letters were properly placed in the teachers’ files because, pursuant to the controlling Collective Bargaining Agreement, their union had negotiated a waiver of the §3020-a procedures with respect to the placement of letters of reprimand in tenured teacher's files and it had been replaced with a different procedure.

Education Law §3020(1) provides: "No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section [3020]-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement."

Noting that §3020-a does not define "discipline," the Court of Appeals said that §3020-a authorizes a hearing officer to impose as a penalty "a written reprimand, a fine, suspension . . . without pay, or dismissal." Section 3020(4)(a), said the Court, further provides that "Notwithstanding any inconsistent provision of law, the procedures set forth in section [3020]-a of this article . . . may be modified by agreements negotiated between the city school district of the city of New York and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by such city school district and the united federation of teachers on or after [June, 10, 2002]."

The Court of Appeals, assuming, but not deciding, that the letters complain of constituted "discipline" for purposes of §3020-a, decided “there is ample basis to conclude that the union knowingly waived the procedural rights granted in Education Law §3020-a in this limited arena.”

As the letters at issue were held as not being subject to §3020-a procedures, the Court ruled that neither Hickey nor Cohen was not entitled to have them expunged from their respective personnel files.

This not the first time that the Court of Appeals has addressed the issue of alternatives to a statutory disciplinary procedure. In Antinore v State [40 NY2d 6] the Court said that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure so long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutary proceedure that it replaced.

The collective bargaining agreement** controlling in Antinore provided that an individual served with administrative disciplinary charges could elect either a disciplinary proceeding set out in a collective bargaining agreement or, in the alternative, elect to have the matter considered pursuant to a statutory disciplinary procedure, in this instance Civil Service Law §75.

Antinore elected to have the charges filed against him adjudicated pursuant to the procedure set out in the collective bargaining agreement. After the arbitrator found him guilty, Antinore sued, contending that he was entitled to a §75 disciplinary hearing as a matter of law. The Court of Appeal rejected his claim, holding that where an individual has elected to have disciplinary charges filed against him or her adjudicated pursuant to a process that provided administrative due process, he or she may not later claim the right to relitigate the charges under a statutory due process proceeding.

Significantly, the Court of Appeals said that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure if the alternate procedure provided constitutional due process protections equivalent to those available under the statute it replaced.

* See http://publicpersonnellaw.blogspot.com/2011/01/constructive-criticism-or-discipline.html setting out the differences between letters constituting “constructive criticism” and letters constituting “reprimand.”

** This option was set out in the initial collective bargaining agreement negotiated between the State as an employer and the Civil Service Employees Association with respect to employees in negotiating units represented by CSEA.

The Hickey decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04541.htm

Rules of the New York State Civil Service Commission typically do not control with respect to employees of a political subdivision of the State.

Rules of the New York State Civil Service Commission typically do not control with respect to employees of a political subdivision of the State.

Matter of Civil Serv. Employees Assn., Inc. v Baldwin Union Free School Dist., 2011 NY Slip Op 04461, Appellate Division, Second Department

Francesco Pignataro, an employee of the Baldwin Union Free School District, filed a grievance and a demand for arbitration alleging that the District wrongly removed him from the payroll. Ultimately a proposed settlement of the matter was negotiated pursuant to which, among other things, it was agreed that Pignataro would receive the sum of $50,000 as compensation for his leave accruals in exchange for his resignation and the withdrawal of his grievance.

The Appellate Division subsequently ruled that Pignataro's letter of resignation was not "delivered" to the Board so as to preclude Pignataro from unilaterally withdrawing his letter of resignation without the Board's consent "under the pertinent Civil Service Law regulation (see 4 NYCRR 5.3[c])."*

However, 4 NYCRR 1.1, Application of rules, provides that

“Except as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service.”

Accordingly, 4 NYCRR 5.3[c] controls only with respect to employees of the State of New York as an employer and those entities for which the Civil Service Law is administered by the New York State Department of Civil Service. The Baldwin Union Free School District is not such an entity.

A number of local civil service commissions have adopted a rule similar to 4 NYCRR 5.3[c].** For example, Westchester County Civil Service Rule 17 addresses resignations and provides, in pertinent part, as follows:

“17.3 Withdrawal or amendment [of a resignation]. A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

In the event the Nassau County Civil Service Commission has adopted a rule addressing the ability of an individual to withdraw his or her resignation, presumably the Appellate Division would apply that rule in resolving the matter.

* 4 NYCRR 5.3(c) provides that a resignation of a civil service employee, which must be in writing, "may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority." However, this rule applies only to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Many local civil service commissions have adopted a similar rule.:

** Section 20 of the Civil Service Law sets out the procedures to be followed by a local civil service commission or personnel officer wishing to amend its “personnel rules.” It provides that such rules may be amended only after a public hearing and requires the approval of the State Civil Service Commission. Finally, to have the “force and effect of law,” the amendment must be filed with the Secretary of State to complete the process.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04461.htm