Doctrine of Estoppel applied in ADA litigation

Doctrine of Estoppel applied in ADA litigation

DeVito v Chicago Park District, CA7, 270. F.3d 532

Nicholas DeVito charged that his employer, the Chicago Park District, violated the ADA by failing to accommodate his disability. His claim was dismissed after a bench trial. The district court judge found that the DeVito was physically incapable of working full time, even with an accommodation, and therefore was not within the Act's protections. The Circuit Court agreed and dismissed DeVito's appeal.

DeVito worked as a laborer for the park district until he injured his back in 1979. Although his injury prevented his returning to his laborer's job, he was assigned to a “light duty” job -- answering the telephone at a park district office near his home.*

Four years later, the park district fired DeVito after it videotaped him twisting, bending, and climbing in and out of trucks.

Starting with the observation that the employment provisions of the Americans with Disabilities Act provide relief only to persons who are capable, with or without an accommodation that would make it possible for them to work despite a disability, to perform the essential functions of their job, which in the case of a full-time job requires that they be capable of working full time.**

In addition, said the court, there is a more fundamental objection to DeVito's claim. The doctrine of estoppel prevents a litigant from repudiating a representation that has reasonably, foreseeable induced reliance by the person to whom he made it. “Even if the representation was false (indeed that is the usual case in which the doctrine is applied), the maker of it is estopped (forbidden) to deny it and by denying it pull the rug out from under the unsuspecting person to whom he had made it.”

The doctrine has been applied in ADA cases much like this one -- cases in which an employee attempts to whipsaw his employer by first obtaining benefits or concessions upon a representation of total disability to work full time and then seeking damages for the employer's failure to accommodate the disability, which the employee now seeks to prove was not total after all.

In the words of the court, “an ADA plaintiff may be estopped by an inconsistent representation made to his employer to obtain benefits.” However, the Circuit Court observed that “since different statutes define total disability differently, the employee will sometimes be able to explain away the apparent inconsistency of his positions.

Here the court rejected DeVito's efforts to “explain away” any inconsistencies in his position. It said that the park district was entitled to rely on DeVito's implicit representation -- implicit in his behavior in his light-duty job answering the phone -- that “he could work no more than two or three hours a day and on his explicit representation that his condition had not improved since the original injury.”

* DeVito was allowed to leave work whenever he felt pain or stress and admitted that he would typically leave work after only two or three hours, though he was being paid the full wages of a laborer who works eight hours a day.

** The fact that DeVito had not worked full time for 13 years at the time of the appeal hearing -- the ostensible reason being his disability, and his statement at that hearing that he currently felt no better than he had felt when he was first injured -- was enough evidence to enable the district judge to find that DeVito was incapable of working full time.

PERB has exclusive jurisdiction to determine improper practice charge

PERB has exclusive jurisdiction to determine improper practice charge

Westchester County Dept. of Pub. Safety Police Benevolent Assn., Inc. v Westchester County, 35 AD3d 592, 828 N.Y.S.2d 412

Westchester County created three director positions in the Westchester County Department of Public Safety. It appointed three civilians to those positions rather than appoint “sworn officers” to the vacancies.

The Westchester County PBA sued, contending that because the positions involve the performance of traditional police functions, its members were deprived of positions that should have been reserved exclusively for them. In the words of the Appellate Division, “More precisely, [PBA] argues that it has an obligation to "preserve the work that its members perform." The PBA complained that the County is seeking to “circumvent" the collective bargaining agreement by creating what are, in essence, police positions, and staffing them with civilians.”

The Court said PBA’s underlying complaint is that the County committed an improper employer practice by its failure to bargain with it prior to the creation and relegation of work properly assigned within the bargaining unit to persons outside of it. Accepting PBA’s characterization of the nature of its case, the Appellate Division concluded that PBA’s action must be dismissed because resolving the improper labor practice charge it advanced is within the exclusive jurisdiction of the Public Employment Relations Board.

The decision noted that PBA, in an effort to maintain its law suit, argued that it had cited Civil Service Law § 209-a(1)(d) merely for the purpose of demonstrating standing but that the merits of this action were not within PERB's jurisdiction. The Appellate Division rejected the PBA’s “attempt to evade the consequences of its standing argument;” stating, “clearly, the [PBA] cannot have it both ways.”

Unless the CBA so provides, the statute of limitations for filing a lawsuit is not tolled because a contract grievance procedure must be exhausted before initiating litigation

Unless the CBA so provides, the statute of limitations for filing a lawsuit is not tolled because a contract grievance procedure must be exhausted before initiating litigation

Civil Serv. Employees Assn., Inc. v County of Nassau, 2011 NY Slip Op 05649, Appellate Division, Second Department

The Civil Service Employees Association and a number of the employees in the collective bargaining unit it represents[CSEA] initiated a lawsuit alleging that Nassau County breached a provision in the collective bargaining agreement (CBA) executed by the County and CSEA.

CSEA contended that Nassau alleged that Nassau had improperly placed employees promoted in calendar years 1999 and 2000 in the incorrect step or grade on the relevant graded salary schedule. Although both Nassau and CSEA moved for summary judgment,  Supreme Court denied the County's motion but granted CSEA’s cross motion for summary judgment on the issue of liability, and directed an inquest on the issue of damages.

Nassau appealed.

The Appellate Division, noting that an arbitrator previously denied CSEA’s request for a finding that the County had breached the CBA with respect to its handling of pre-2001 promotions, said that advisory determination never became binding on CSEA and thus its complaint was not barred by the doctrine of res judicata.

However, said the court, Nassau was correct when it contended that the six-year statute of limitations for an action upon a contractual obligation applies to CSEA’s action. Further, the statute of limitations was not tolled to allow CSEA to go through the internal grievance process, as they were required to do pursuant to the CBA's terms.

The Appellate Division ruled that “In the absence of a provision in the CBA providing for the tolling of the statute of limitations while [CSEA] exhausted the grievance process, the mere fact that the CBA required [CSEA] to exhaust the grievance process before filing suit in state court did not toll the statute of limitations,” citing Nassau Ch. Civ. Serv. Empls. Assn., Local 830, AFSCME, Local 1000, AFL-CIO v County of Nassau, 154 Misc 2d 545,  affd 203 AD2d 267.

Accordingly, because the complaint was filed on April 11, 2006, CSEA may only attempt to recover breach of contract damages for acts occurring on or after April 11, 2000. 

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05649.htm

Free Speech in the classroom

Free Speech in the classroom

Opinions by US Circuit Courts of Appeal

A number of U.S. Circuit Courts of Appeal have considered challenges from teachers contending that their respective employers had curtailed their constitutional right to free speech.

1. Mayer v. Monroe County Community School Corporation, 474 F.3d 477

In this 42 USC 1983 lawsuit, a teacher alleged that she was dismissed from her position because of her statement opposing the United State’s military involvement in Iraq in a social studies class. The Circuit Court said that the First Amendment does not entitle primary and secondary teachers to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system while teaching in a classroom setting.

2. Deschenie v. Bd. of Educ. of Cent. Consol. Sch. Dist. No. 22, 473 F.3d 1271

Here the Circuit Court ruled that a former teacher did not suffer unlawful retaliation for engaging in speech protected by the First Amendment after finding that the teacher’s speech, which concerned bilingual education, was not causally related to the adverse employment actions taken by the school board.

3. Casey v. W. Las Vegas Independent School District, 473 F.3d 1323

The school district and officials were sued for allegedly demoting and ultimately terminating a teacher for reasons that the teacher claimed constituted unlawful retaliation for her exercising her First Amendment rights. The court dismissed the appeal, commenting that the teacher failed to show that her statements concerning “the Head Start program” and miscellaneous violations of state or federal law were made in her capacity as a citizen and not pursuant to her “official duties.”

Making a false report of an incident to an employer

Making a false report of an incident to an employer

Sweeney v Safir, 267 AD2d 99, Motion to appeal denied, 95 NY2d 753

New York City police officer Kevin Sweeney reported that he was the victim of a gunpoint robbery of his fiancée’s car. He made these allegations in both police reports and in his testimony before a Grand Jury. The commissioner determined that rather than being the victim of a robbery -- the car had been simply stolen from the street when Sweeney left it double-parked with the keys in the ignition and the engine running. Sweeney was dismissed from his position for making false statements.

The Appellate Division unanimously confirmed the Commissioner's action, finding that “no basis exists to disturb” the commissioner's determination and that the penalty of dismissal does not shock its sense of fairness.

Medical examination procedures established by the employer negotiable

Medical examination procedures established by the employer negotiable

Professional Firefighters, Local 32, v City of Utica, 32 PERB 3056

The City of Utica unilaterally directed its firefighters to take a physical examination administered by a City-designated physician. It advised firefighters that it would terminate anyone who failed the examination. Local 32 filed an unfair labor practice charge with PERB alleging that the City had refused to negotiate “specific subjects related to the City's directive.”

PERB directed the City to negotiate the local's demands concerning “the pre-testing, testing, post-testing and re-testing procedures” and related issues, including the firefighter's ability to select the examining physician. 

Public policy and arbitration awards

Public policy and arbitration awards

Correctional Officers PBA v State, 94 NY2d 321

Edward Kuhnel, a State correctional officer, was suspended from duty and served with disciplinary charges after the Department of Correctional Services learned that he flew a Nazi flag from the front porch of his home on December 10, 1996 -- the 55th anniversary of Hitler's declaration of war on the United States.

Kuhnel was charged with violating two department rules:

[1] “No employee, whether on or off duty, shall so comport himself as to reflect discredit upon the Department or its personnel;” and 

[2] “An employee shall not join or otherwise affiliate himself with any organization, body, or group of persons when such association or affiliation will place his personal interest or interest as a member of such group in conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee.”

The Department also charged that Kuhnel's conduct “endangered the safety and security of all facilities in the New York State Department of Correctional Services.”

The disciplinary arbitrator found that the department failed to prove Kuhnel was guilty of the charges filed against him and ordered him reinstated to his position.

The arbitrator concluded that there was no linkage between the off-duty misconduct and Kuhnel's employment because, he said, the department failed to show that Kuhnel's conduct harmed “the department's business, adversely affected his ability to perform his job, or caused co-workers not to work with him.”

According to the arbitrator, the expectation or projection of possible harm, in contrast with evidence of actual harm, was not enough to permit restriction of the employee's symbolic free speech or regulation of his off-duty conduct. As to the charge that Kuhnel had joined or affiliated himself with an organization, that would “conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee,” the arbitrator said that the department “provided no evidence of Kuhnel's affiliation with the Neo-Nazi party's objectives or activities.”

PBA filed a petition pursuant to Article 75 of the Civil Practice Law and Rules to confirm the award. The department filed a “cross-petition” in an effort to vacate the arbitration award on the grounds that “it was irrational and violated public policy.” Supreme Court granted the PBA's petition confirming the award.*

The Appellate Division, in a 3 to 5 decision affirmed the Supreme Court's action, holding that the award was rational and did not violate a strong public policy of this State. The department appealed the ruling to the Court of Appeals, which held that “our jurisprudence has carefully limited the invocation of public policy concerns as a basis for usurping the role of an arbitrator and determining a dispute on the merits.” It then affirmed the Appellate Division's determination.

The court's rational:

Collective bargaining agreements commonly provide for binding arbitration to settle contractual disputes between employees and management and the courts generally play a limited role. Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies and cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one.

Addressing the public policy argument advanced by the department, the Court said that:

The public policy exception has its roots in common law, where it is well settled that a court will not enforce a contract that violates public policy. A court, however, may not vacate an award on public policy grounds when vague or attenuated considerations of a general public interest are at stake. Courts shed their cloak of noninterference [only] where specific terms of the arbitration agreement violate a defined and discernible public policy.

 

The Court of Appeals said that “looking at the only prong of the public policy exception argued before this Court, we conclude that the award does not violate a well-defined constitutional, statutory or common law of this State.”

* Petitions to confirm an arbitration award must be filed within one year of the determination; petitions to vacate an arbitration award must be filed within three months of the date of the award.

Statutory residency requirement to serve in elective office held constitutional

Statutory residency requirement to serve in elective office held constitutional

Matter of Walsh v Katz, 2011 NY Slip Op 04545, Court of Appeals

The relevant statute providing for the election of a town justice for Fisher's Island, Suffolk County, provides, in relevant part, for "… one town justice who shall reside upon Fisher's island in said town … such town justice residing upon Fisher's island shall, in addition to his duties as town justice, serve as a member of the Southold town board."

In July 2009, Daniel C. Ross, a resident of Southold but not a resident of Fisher's Island, filed a petition designating himself a candidate in the September 2009 primary election for the nomination of the Democratic Party as its candidate for the Fisher's Island town justice/town board member seat.

Arthur J. Walsh and Nina J. Schmid — residents of Fisher's Island — filed objections to Ross’s designating petition, alleging that it was invalid because Ross did not meet the residency requirement.

The Board of Elections denied the objections and upheld the designating petition whereupon Walsh and Schmid initiated a lawsuit seeking to prohibit the BOE from placing Ross's name on the ballot. Ross counterclaimed and, in effect, cross-petitioned to validate the designating petition, challenging, among other things, the constitutionality of the residency requirement.

Subsequently the Appellate Division upheld the constitutionality of the statute on equal protection grounds (66 AD3d 1052) holding that a rational basis standard was applicable, and that a rational basis exists to support the Legislature's determination that the fifth town justice/town board member for Southold should be a resident of Fisher's Island.*

Although Ross lost the November 2009 general election, the Court of Appeals said that this action presents a live controversy. Supreme Court converted and continued Ross's constitutional claims as a declaratory judgment action, and the Appellate Division decided the constitutional issues. Though no longer a candidate, Ross is a voter who claims that his right to vote is being unconstitutionally burdened.

The Court of Appeals affirmed the Appellate Division’s ruling, holding that the Fisher's Island residency requirement satisfies the rational basis test, explaining that in considering an equal protection challenge to a state election law a court must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiff's rights."

The direct impact of the Fisher's Island residency requirement is not on one's right to vote, but on an individual's right to be a candidate for public office. The residency requirement here challenged did not require a candidate to be a resident of Fisher's Island prior to commencement of his or her term of office. In other words, said the court, “the winner of the town justice/town board position does not need to establish residency on Fisher's Island until the beginning of his/her term, and must only retain that residency for the duration of the term.”

Accordingly, any Town of Southold, Suffolk County resident who would otherwise be eligible to run for political office may run for the Fisher's Island seat. 

The Court of Appeals also noted that the United States Supreme Court stated a “basic teaching of representative government … that elected officials represent all of those who elect them, and not merely those who are their neighbors," citing Dusch (387 US 112, Dallas County, Alabama v Reese (421 US 477) and Fortson v Dorsey, 379 US 433.

As the Fisher's Island seat is subject to a town-wide vote, the individual elected to fill the seat represents the entire town, not just the residents of Fishers Island. Accordingly, said the court, “Ross's contention that the residency requirement gives the people of Fishers Island a permanent advantage of greater representation is unavailing.”

* With respect to Supreme Court's ruling that the prevailing candidate need not abide by the residency requirement until 30 days after beginning his or her term of office, the Appellate Division modified Supreme Court's order by holding that, in this instance January 1, 2010, was the appropriate date by which a candidate had to meet the residency requirement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04545.htm