Sexual harassment complaints

Considering complaints alleging sexual harassment

Rider v Rondout Valley CSD, Comm. Ed. Decision 14238

The decision of the Commissioner of Education in the appeal filed by Carolyn Rider concerns the Rondout Valley Central School District’s investigation of Rider’s complaint of sexual harassment by a co-worker and the remedy provided by the district.

Rider, a secretary in the district’s middle school’s guidance office, filed charges that middle school guidance counselor, Carol Arnone-Ippolitti, had engaged in actions against her that constituted sexual harassment.

The superintendent of schools, David S. Giles, conducted an investigation of Rider’s allegations. In the course of the investigation, which lasted several months, Giles conducted more than 70 interviews, meeting with Rider, Arnone-Ippolitti, and other members of the staff.

Giles verified that a number of Rider’s allegations were true and as to those, he found that “Arnone-Ippolitti’s actions were offensive, insensitive, created a hostile work environment and rose to the level of sexual harassment.”

In his report to the board, Giles recommended that Arnone-Ippolitti:

1. Be given a “counseling letter,” a copy of which was to be placed in her personnel file;

2. Undergo counseling and sensitivity training;

3. Be assigned to another work location and her “behavior closely monitored by the building principal.”

In addition, Giles said that a copy of his report to the board should also be placed in Arnone-Ippolitti’s personnel file.

Rider appealed some of the superintendent’s findings to the board. After reviewing the entire record in executive session, the board concluded only three of the 21 incidents alleged by Rider “could be characterized as sexual in nature.” The board also determined that these three incidents were not sufficient to “form a basis for hostile work environment sexual harassment.”

However, the board also said that Arnone-Ippolitti “had engaged in distasteful, unprofessional, and unacceptable conduct.” Although the board initially directed that Arnone-Ippolitti “be returned” to her middle school position, it reversed itself after Rider asked it to “reconsider its decision.”*

Rider appealed, complaining that there were deficiencies in Giles’ investigation such as the individuals interviewed were not sworn to tell the truth. She also objected to Giles findings that did not support her allegations of misconduct on the part of Arnone-Ippolitti and to a number of elements in the board’s resolution of the matter.

Before reaching the merits of Rider’s appeal, the Commissioner pointed out that a necessary party, Arnone-Ippolitti, had neither been named in the appeal nor served with copies of Rider’s “notice and petition.” This was a fatal omission on Rider’s part and the Commissioner dismissed her appeal. The decision notes that if the Commissioner were “to decide any aspect of this appeal in [Rider’s] favor, Ms. Arnone-Ippolitti’s rights would unquestionably be affected.”

However, the Commissioner did take the opportunity to note that even if Rider’s appeal had not been dismissed on procedural grounds, it would have been dismissed on the merits.

The Commissioner noted the “extensive investigation” conducted by Giles, which resulted in Arnone-Ippolitti being given a counseling memorandum, sensitivity training and that her activities at work were being monitored in support of this conclusion.

The Commissioner noted that while the board disagreed with some of the superintendent’s findings -- i.e., the presence of a hostile work environment, it did not change his recommendations as to the personnel actions to be taken against Arnone-Ippolitti.

The rule a case such as this is that the Commissioner will not substitute his judgment for that of a school board unless it is demonstrated that board’s actions were arbitrary or capricious, constituted an abuse of discretion or failed to comply with law.

In contrast to finding any of these elements present in this case, the Commissioner said that after reviewing the record concerning the procedures following in investigating Rider’s complaints and the action taken by the board, there was “no basis for substituting” his judgment for that of the superintendent or the board.

* The board apparently adopted the recommendations of the superintendent concerning counseling and other remedial personnel actions resulting from his investigation of Arnone-Ippolitti’s conduct.

Sick leave and workers’ compensation

Sick leave and workers’ compensation

Robinson v NYC Department of Social Services, 266 A.D.2d 613

Ada Robinson, a stenographer/secretary, filed a claim for workers’ compensation benefits based upon work-related carpal tunnel syndrome. Although she “failed to file her claim” within the two-year period as required by Section 28 of the Workers’ Compensation Law, the Workers’ Compensation Board awarded her workers’ compensation benefits. The department appealed.

The department had continued Robinson on the payroll following her surgery to relieve her condition. The Board decided that this constituted an advance payment of wages within the meaning of Section 28, and held that the “limitations period” did not apply in her case.*

As Robinson “could have used sick leave” even if her condition had not been work-related, the department argued that she would have been paid regardless of the cause of injury and thus it had not made an advance payment.

The department’s personnel records, however, showed that Robinson had checked the disability box, not one of the sick leave boxes, on the “request for leave form” approved and signed by her supervisor. Also, her request for additional absence, also approved by her supervisor, included the notation “Workers’ Comp.”

Thus, said the court, the record supported the Board’s ruling that the department continued to pay Robinson in recognition of its workers’ compensation liability.

* Remuneration in the form of wages can constitute an advance payment where the payment is provided in recognition of workers compensation liability. In contrast, payments made regardless of the cause of injury do not constitute an advance payment.

Determining General Municipal Law Section 207-a benefits to be paid the individual after he or she retires

Determining General Municipal Law Section 207-a benefits to be paid the individual after he or she retires

Gresis v Fairview Fire District, Supreme Court, Justice Loehr, 15 Misc.3d 209

James J. Gresis is a retired Fire Captain receiving a performance of duty disability retirement allowance from the New York State Employees’ Retirement System plus a supplemental benefit pursuant to General Municipal Law Section 207-a(2) paid by Fairview. The Section 207-a supplemental benefit to be paid by Fairview is the difference between the amount of Gresis’ disability retirement allowance and the amount of “his regular salary and wages” until he reaches mandatory service retirement age, age 70.*

When Gresis commenced receiving his retirement allowance, the collective bargaining agreement (CBA) then in effect between the Fairview Fire Department and the Fire Fighters Association provided for a graduated salary structure for firefighters based on years of service. Further, Gresis’ “regular salary and wages” as a Captain was determined by applying a mathematical formula that provided Fairview Fire Captains with an annual salary that was 35% higher than the salary of a first-grade Firefighter.

In September 2002, all Captains, with the exception of Gresis, were reclassified Deputy Chiefs. Any Captain seeking to be appointed to this new title had to take and pass the Deputy Chief's examination. It appears that all Captains, with the exception of Gresis, took the Deputy Chief's examination and were appointed Deputy Chiefs.

Initially Fairport provided a Section 207-a supplement to Gresis based on a Captain's salary. However, commencing in mid-2006, Fairview reduced the supplement it had been paying Gresis to a lesser amount.

Gresis claimed that his supplement should be based on the compensation rate paid to Deputy Chiefs. The impact of this change in compensation, according to Gresis, was as though Fairport had demoted him from two grade levels above the Firefighter's grade to one grade above Firefighter’s grade. Fairview’s reduction of his supplementation to his retirement allowance, Gresis argued, violated General Municipal Law Section 207-a.

Fairport, on the other hand, maintained that it had continued to pay Gresis at the grade he retired at: Captain. It argued that any reduction in the amount of the supplement was the result of the reclassification and the new CBA, In effect, Fairport said that the pay rate for its Fire Captains at the time Gresis retired was now equal to the pay rate for its Fire Lieutenants. Thus, Fairport contended, it had not demoted Gresis but merely provided him with the supplement reflecting the change in the classification and allocation of his former position.

The court, citing Pease v Colucci, 59 AD2d 233,** rejected Fairview’s theory. It ruled that Section 207-a guarantees that any firefighter who suffers an employment-connected disability will receive his or her full annual wage “which shall not be interrupted or reduced in any respect except as based on the employee's own misconduct.”

The court decided that Fairport’s reduction of Gresis’ supplemental benefit from two grades above a Firefighter's to one grade above a Firefighter's was arbitrary and capricious and in violation of General Municipal Law Section 207-a(2).

* In Drahos v Village of Johnston City, 80 AD2d 100, the Court held that a firefighter injured in the line of duty and unable to return to work is entitled to the full amount of his regular salary until he returns, citing Section 207-a of the General Municipal Law. This, said the Drahos court, includes increases and adjustments received by firefighters in active status during the period of absence.

**  In Pease the Appellate Division ruled that once an individual became qualified for a Section 207-a benefit, the benefit continues until the individual recovers or reaches the mandatory age of retirement. The Pease case involved a Buffalo fire lieutenant who was "laid off" from his position while on Section 207-a leave. Lieutenant Pease’s position was abolished due to the City of Buffalo's financial difficulties. Buffalo then "reinstated" Pease to a firefighter position; reducing his Section 207-a supplement by calculating it on basis of a "firefighter's salary" rather than his previous salary as a lieutenant. This change, said the court, violated mandates set out in Section 207-a with respect to supplements to the retirement allowance to be paid to by the employer.

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Proceeding with disciplinary action in situations where disability may be a consideration

Proceeding with disciplinary action in situations where disability may be a consideration

Matter of Schlitz v Cavanagh, 14 Misc.3d 1213(A

The significant issue in the Schlitz case concerned the interplay of two different provisions of the Civil Service Law: (1) serving disciplinary charges against an individual pursuant to Section 75 and (2) Section 72, which is triggered in cases of an employee’s inability to perform the duties of the position because of non-work related disease or disability.

Essentially Section 72 provides for the placement of an employee on a leave because of a disability, other than a disability resulting from an occupational injury or disease, in the event it is determined that he or she is unable to perform the duties of the position satisfactorily because of that disability.

In Penebre v Dzaluk, 51 AD2d 574, the Appellate Division ruled that §75 charges for misconduct should not have been served on a police officer but that the employer should have proceeded under §72, Ordinary Disability Leave instead. Penebre, said the court, “had performed successfully as a police officer for 13 years before his behavior markedly changed.” He became depressed and inattentive. Under these circumstances, the Appellate Division said that serving Penebre with §75 charges for misconduct was misplaced.

Schlitz also was served with disciplinary charges pursuant to Section 75. Before the conclusion of the disciplinary hearing, however, Schlitz was placed on Section 72 -- non-occupational disability leave -- from his position.

A physician was employed by the Town and asked to determine whether or not Schlitz was suffering from a “mental health issue” that affected his ability to perform his duties satisfactorily. The physician’s opinion, “given within a reasonable degree of medical certainty,” was that "any past misbehavior on the part of Mr. Schlitz would not have been because of a psychiatric condition."

Ultimately, Schlitz was found guilty of various instances of misconduct and the penalty imposed was demotion.

Schlitz appealed but withdrew his claim regarding the Section 75 determination and penalty by conceding that there was substantial evidence to justify the findings of misconduct and the penalty imposed. Instead, Schlitz contended that the Town knew that he was suffering from depression and that the filing of disciplinary charges against him under these circumstances amounted to unlawful workplace discrimination against a person with a disability.

In addition, Schlitz argued that the Town was required to present the evidence of his depression in the §75 hearing as a defense or in mitigation of the misconduct charges.

Justice Mayer found that Town was within its rights to conduct the §72 proceeding and suspend the §75 hearing pending the results of Schlitz’s medical evaluation. Further, said the court, once the Town had evidence that the misconduct alleged in the §75 charges and specifications were not due to mental disability, it had the right to move forward under §75.

As to Schlitz’s claim that he was the victim of “unlawful workplace discrimination against a person with a disability,” the court said that the medical evidence in this case was that Schlitz’s acts of misbehavior were not caused by a psychiatric condition. Justice Mayer held that “there is no admissible proof that the petitioner is, or ever was, mentally disabled, and the claim of workplace discrimination perpetrated by the Town by bringing the charges of misconduct against an allegedly disabled person is, therefore, without merit.”

In contrast to discipline/termination procedures, the basic concept underlying the use of Section 72 in disability related situations is the separation/rehabilitation/reinstatement of the employee.

Section 72.1 sets out the procedures to be followed by the appointing authority before an employee may be placed on leave for ordinary disability involuntarily.

Section 72.3 describes the appeal procedures, including recourse to the courts pursuant to Article 78 of the Civil Practice Law and Rules, available to an individual involuntarily placed on disability leave following a Section 72.1 hearing.

Section 72.5 provides an exception to the basic requirement that a Section 72.1 hearing must be concluded before the employee may be placed on Section 72 disability leave involuntarily based on the appointing officer determination that there is a "potential danger" if the employee is permitted to continue on the job.

Section 73 of the Civil Service Law addresses the termination of an individual who has been continuously absent from his or her position on Section 72 leave for more than one year.