Statements contained in a disciplinary post-hearing brief may be considered by the appointing authority to support its conclusions

Statements contained in a disciplinary post-hearing brief may be considered by the appointing authority to support its conclusions

Sisco v Board of Trustees, 288 AD2d 230

The Board of Trustees of the Village of Havestraw dismissed police officer Keith Sisco after finding him guilty of disciplinary charges alleging misconduct filed against him.

Sisco appealed, contending that he had been denied a fair hearing because the Board incorporated portions of the Police Department's written post-hearing brief its determination. In effect, claimed Sisco, the inclusion of such statements indicated that the Board had ceded it decision-making powers to the Department.

The Appellate Division rejected Sisco's arguments, in effect indicating that there was nothing improper in the decision maker referring to, or including, statements set out in a post-hearing brief to support its conclusions.

The court also said that the Board's determination was supported by substantial evidence in the record, including Sisco's admissions in the related criminal charges brought against him. The court did not appear to have difficulty in allowing the use of such admissions in a subsequent administrative disciplinary action based on the same alleged acts of misconduct.

Indeed, a guilty verdict in a criminal court automatically serves to establish guilt in an administrative disciplinary hearing involving the same events.  In Kelly v Levin, 440 NYS2d 424, the court ruled that is a reversible error for an administrative disciplinary tribunal to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations.

Reasonable accommodation under the Americans With Disabilities Act

Reasonable accommodation under the Americans With Disabilities Act

Lovejoy-Wilson v NOCO Motor Fuel, CA2, 263 F.3d 208

The Lovejoy-Wilson case points out that offering a disabled individual one reasonable accommodation will not necessarily excuse the employer from considering subsequent requests for an alternative accommodation submitted by the individual.

Diane Lovejoy-Wilson suffers from epilepsy and experiences seizures of varying seriousness on practically a daily basis. Because of her epilepsy and New York State's requirement that an epileptic be seizure-free for two years in order to obtain a driver's license, Lovejoy-Wilson is unable to drive a motor vehicle.

Lovejoy-Wilson was told that she could not be considered for promotion to an assistant manager position because she did not drive and driving to a bank to make deposits was an essential duty of an assistant manager. However, she was later offered a promotion to the position of assistant manager at a store at which an armored car service picked up the store's receipts and transported them to the bank for deposit.

Rejecting this assignment because of its undesirable location, Lovejoy-Wilson told NOCO that she felt that she was being discriminated against because of her disability in violation of the ADA and suggested six possible accommodations of her disability that would, in her view, be reasonable. In her words, any one of the following would provide a reasonable accommodation of her disability:

1. Another manager can pick her up on the way to the bank.

2. She could hire a service to drive her when necessary for her job.

3. NOCO could hire a service to drive disabled employees in management and supervisory positions when necessary.

4. She could hire an individual to drive her when necessary for the job.

5. NOCO could hire an individual to drive disabled management and supervisory employees when necessary.

6. Where practical and possible, she could use public transportation when travel is necessary for her job.

NOCO's president, Robert Newman, rejected all of these suggestions. He wrote Lovejoy-Wilson: The ADA is not for intimidating employers to change non-discriminatory operational policies. Given our past record of accommodating employees with disabilities, I find your position weak at best.

When a promotion failed to materialize Lovejoy-Wilson submitted her resignation effective September 15, 1994 and commenced working for another employer the next day. She also filed a complaint with EEOC alleging that NOCO had discriminated against her because of her disability.

Eventually Lovejoy-Wilson obtained a “right-to-sue letter” and brought an action in federal district court against NOCO for unlawful discrimination. The district court granted NOCO's motion for summary judgment, concluding that while Lovejoy-Wilson was a qualified individual with a disability, she had not been constructively discharged.

Both Lovejoy-Wilson and NOCO appealed the district court's judgment. Lovejoy-Wilson challenged the district court's dismissal of her accommodation, promotion, and retaliation claims while NOCO contested the district court's determination that Lovejoy-Wilson is a qualified individual with a disability under the ADA.

The Second Circuit said that the ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

Further, said the court, under ADA, the term “discriminate” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee....”

The district court's dismissal of Lovejoy-Wilson's complaint, said the Circuit Court of Appeals, was based on its conclusion that Lovejoy-Wilson's desire to become an assistant manager at a particular location was based on personal convenience, not her disability, and that NOCO accommodated her disability by promoting her to assistant manager at a store with armored car service in May 1994.

The court held that in so doing, the district court misinterpreted and misapplied the requirements underlying providing a reasonable accommodation under the ADA and failed to consider the facts in the light most favorable to Lovejoy-Wilson.

Rejecting NOCO's argument that by offering Lovejoy-Wilson a promotion at an armored car store was, as a matter of law, a reasonable accommodation, the Second Circuit cited its ruling in Wernick v Federal Reserve Bank, 91 F.3d 379. In Wernick the court said that in requiring reasonable accommodation, “Congress intended simply that disabled persons have the same opportunities available to them as are available to nondisabled persons.”

As to a disabled individual requesting placement at a particular location, the court commented that: If an employer offers its workforce an opportunity for promotion to a higher level of employment without honoring any requests for a particular location (or shift), then an ADA plaintiff cannot complain of assignment to a less favorable location. However, if the employer permits its workers to apply for promotion at a preferred location (or shift), then a disabled person must have the same opportunity.

The decision states that “the evidence thus far developed in this case indicates that NOCO's employees could apply for promotion at a particular store.” Accordingly, if its employees could apply for promotion to assistant manager at stores of their choice, then Lovejoy-Wilson had the right to seek the assistant manager job at the store she desired free from discrimination.

The Circuit Court concluded that in making the determination whether or not NOCO failed to accommodate Lovejoy-Wilson's disability, the reason for her desire for that particular job -- personal convenience or otherwise -- does not matter. Lovejoy-Wilson was entitled to a reasonable accommodation, if one was available, to permit her to compete with nondisabled applicants on an equal basis to become assistant manager at the store of her choice.

A rational jury could find on the basis of the evidence adduced that such a reasonable accommodation was available but not offered to her.

Finally, said the court, there is more than enough evidence to support a jury finding that “NOCO flatly refused to afford the plaintiff the reasonable accommodation to which she was entitled.” After sustaining portions of the lower court's decision, the matter was remanded for further action in the district court.

Union activity not a shield for an employee the appointing authority decides not to retain for bona fide reasons

Union activity not a shield for an employee the appointing authority decides not to retain for bona fide reasons

Kunjbehari v. Wyandanch Union Free School District, Supreme Court, Justice Costello, Appeal to 2nd Department withdrawn (Index No. 26164/00)

Kunjbehari challenged the District's decision to deny him tenure and sought a court order directing his reinstatement as District Administrator, retroactive to July 1, 2000, together with all back pay and other benefits.

Kunjbehari held tenure with the Wyandanch as an Attendance Teacher. In July 1996, he was appointed to the position of Assistant Director of Student Services, a new position in which he was required to serve a three-year probationary period. In July 1997, Kunjbehari was appointed Director of Testing, Evaluation and Attendance. In April 1999, the then Superintendent of School, Dr. James Lotheridge, recommended that Kunjbehari be granted tenure. The Board of Education rejected that recommendation, but approved Kunjbehari's request that he be permitted to serve another year of probation. The extended probationary period was for the period of July 1, 1999 to June 30, 2000.

In March 2000, Kunjbehari was told by Dr. Brian DeSorbe, the Acting Superintendent, that he was recommending that the Board of Education not grant him tenure. Dr. DeSorbe provided Kunjbehari a written statement setting out the fifteen reasons which formed the basis for Dr. DeSorbe's recommendation he be denied tenure. Kunjbehari submitted a written response to Dr. DeSorbe's statement that was forwarded to the Board of Education. The Board denied Kunjbehari tenure.

Kunjbehari sued, contending that the Superintendent's decision not to recommend him for tenure “was arbitrary and capricious and in bad faith motivated by Dr. DeSorbe's desire to retaliate against petitioner for his union activity.” He alleged that “underlying Dr. DeSorbe's decision to deny [him] tenure was the fact that [he] served as the President of the Wyandanch Administrators' Association and, in that capacity, that he filed and pursued grievances on behalf of himself and three other district administrators against the School District during the 1998-1999 school year arising out the School District's denial of merit pay increases to these administrators.

The court said that while “a board of education has an unfettered right to terminate the employment of a teacher or administrator during his or her probationary period, without a hearing,” it may not do so for “a constitutionally impermissible purpose or in violation of a statutory proscription.” Further, Justice Costello said that “[a]s broad as the board's discretion may be, however, it is also the rule that a school board may not deny tenure to retaliate for a teacher's or administrator's exercise of his or her constitutional rights of free speech and association.”*

In addition, Justice Costello commented that “it is the clear public policy of this State, as set forth in the Taylor Law (Article 14 of the Civil Service Law), that a school board may not discriminate against teachers or administrators for exercising their right to belong to or participate in an employees' union.” However, an individuals' union activity will not provide a shelter for a teacher or administrator whom the school district decides not to retain for bona fide reasons.

* Justice Costello also commented that “[i]t is uncontroverted that the Board of Education lacks the authority to reject the Superintendent's recommendation that tenure be denied, citing Anderson v. Board of Education, 46 AD2d 360, affirmed 38 NY2d 897.”

Depression as a disability within the meaning of the Americans With Disabilities Act

Depression as a disability within the meaning of the Americans With Disabilities Act

Swanson v University of Cincinnati, CA6, 268 F.3d 307

Is the inability to work in a particular area due to a medical condition a disability within the meaning of the Americans With Disabilities Act [ADA]? The Circuit Court of Appeals, Sixth Circuit, decided that where an individual can perform satisfactorily in other areas, he or she does not suffer from a substantially limiting disability sufficient to maintain a claim of unlawful discrimination within the meaning of the ADA.

The Swanson case involved a surgical resident's claim of disability based on his inability to work in one area of medicine due to depression. Dr. John Swanson claimed that the University of Cincinnati [UC] and University Hospital [UH] unlawfully discriminated against him by failing to accommodate his disability -- major depression arising from the break-up of a significant four-year relationship, his parents' separation while he was in college, and other personal losses.

The district court ruled that Swanson's major life activities were not substantially limited by his condition because any restrictions were short-term in nature and mitigated by medication. In addition, his limitations were no greater than those experienced by the average person. As to Swanson's claim of “substantial limitation in his ability to work,” the district court noted that he did not miss any days of work; “his reviewers consistently noted he was able to work hard, even at the peak of his illness”; and his record at the University of Nevada indicated Swanson could give a “solid” performance in surgery with proper medication.

Based on these factors, the court decided that his depression had only a short-term effect on his performance and he was not substantially limited in the major life activity of working.

UH, on the other hand, contended that it did not believe Swanson was disqualified from performing a broad range of jobs, and encouraged him to switch to another medical specialty. Apparently Swanson declined to do so. In any event, the district court rejected his claim that UC and UH regarded him as disabled. Finding that Swanson was not disabled, the district court granted summary judgment to UC and UH.

To establish a prima facie case of discrimination because of disability the individual must show that he or she:

1. is an individual with a disability according to the statute;

2. is “otherwise qualified” to perform the job requirements, with or without reasonable accommodation;

3. suffered an adverse employment decision;

4. the employer knew or had reason to know of his disability; and

5. the position remained open after the adverse employment decision or the disabled individual was replaced.

The Circuit Court, agreeing with the district court, said that Swanson did not show that he could not perform all medical task due to depression, merely those associated with surgery, affirmed the lower court's dismissal of his complaint. 

Determining “in-service” status for the purposes of qualifying for a disability retirement allowance

Determining “in-service” status for the purposes of qualifying for a disability retirement allowance

Matter of Jetter, 288 A.D.2d 591 [see also Jetter v. McCall, 241 A.D.2d 746; Jetter v. Hevesi, 5 A.D.3d 941]

The Jetter case points out that although an applicant for disability retirement benefits has the burden of demonstrating his or her eligibility for such benefits, there must be substantial evidence in the record to support the Retirement System's rejection of the application.

New York State Trooper Roy P. Jetter discovered that he was awarded in-service disability retirement benefits pursuant to Retirement and Social Security Law [RSSL] Section 363-b (b) (2) (b), rather than pursuant to RSSL Section 363-b (b) (2) (a). Benefits received pursuant to Section 363-b (b) (a) apparently are treated more favorably for Federal personal income tax purposes.*

Jetter asked the Retirement System to reconsider its determination. The System decided that although Jetter's disability indeed was casually related to the October 1992 incident, such incident did not occur while he was “in service” and, therefore, he was not entitled to in-service benefits. Jetter appealed.

The Appellate Division noted that to be eligible to receive benefits under Section 363-b (b) (2) (a), Jetter had to establish that he sustained an in-service disability. Jetter's attorney, however, elected to object to the System's interjection of the in-service issue instead of offering proof concerning the issue. This tactical decision, said the court, does not entitle Jetter to a new hearing.

Notwithstanding this, the Appellate Division concluded that the System's “underlying determination is not supported by substantial evidence” and thus Jetter was entitled to a re-hearing because of this.

The only evidence presented on the in-service issue came from (1) Jetter's application for benefits, in which the then Superintendent of the State Police indicated that his injury was sustained while Jetter was “on-duty”; and (2) Jetter's hearing testimony during which he stated that “[w]ith the police department and the use of the [government] vehicle[s], you are on duty when you leave your house and begin to drive.”

While the System was free to reject any or all of Jetter's testimony on this point, its determination “must still be supported by substantial evidence in the record, which would include evidentiary facts and inferences which could fairly be drawn therefrom.”

As the record did not contain any evidence concerning Jetter's regular work schedule or assigned duties, his specific schedule and assigned tour on the day of the incident or whether he engaged in any work-related activities while he was en route to his office, the System's finding that Jetter's injury occurred “before [he] was scheduled to begin his tour” cannot stand.

Significantly, the court said that although Jetter had not entered his place of employment prior to sustaining the disabling injury, that fact, standing alone, does not constitute substantial evidence to support the underlying determination, and cross-examination of Jetter did not result in the elicitation additional facts from which it could be inferred that Jetter was not in service at the time he was injured.

The court's conclusion: Since the record made before the Retirement System did not have sufficient evidence to make a reasoned determination concerning whether or not Jetter had been injured “while in-service,” this case had to be returned to the Retirement System “for a further hearing on that limited point.”

* RSSL retirement benefits are not subject to New York State personal income tax.

Terminated probationer denied a name-clearing hearing

Terminated probationer denied a name-clearing hearing

Matter of Johnston v Kelly, 35 A.D.3d 297, 828 N.Y.S.2d 10

Kevin Johnston, because he served as a probationary police officer, could be terminated from his position without a hearing or a statement of reasons, for any reason or no reason at all, provided the dismissal was not made in bad faith, was not for constitutionally impermissible reasons, or was not in violation of law.

After Johnston was terminated from his position before completing his probationary period, he sued and obtained a court order from Supreme Court directing that he be given a “name-clearing hearing.”

The Appellate Division held that Supreme Court’s granting Johnston’s petition for such a hearing was incorrect. The Appellate Division pointed out that the lower court had improperly granted Johnston’s request for a name-clearing hearing as “the sole purpose of a name-clearing hearing is to afford the employee an opportunity to prove that the stigmatizing material in the personnel file is false."

Here, said the Appellate Division, Johnston has not demonstrated that the materials contained in his personnel file are stigmatizing. More importantly, Johnston had not denied the truth of the central factual assertions in his personnel records that formed the basis for his probationary termination. The decisions notes that Johnston “denied facts that were not stated in the report,” or denied statements in the report that were, at most, “tangential to the central issues.”

In any event, the satisfaction that the individual could expect obtain following the holding of a name clearing hearing is limited. Although it could result in a terminated probationary or provisional employee "clearing" his or her name, clearing his or her name does not automatically result in the individual winning reinstatement to his or her former position.

As the Court of Appeals held in Matter of Stanziale [55 NY2d 735], -- where the basis for dismissal is of a "stigmatizing nature" the individual is entitled to some due process so as to clear his or her name --. However the courts have not yet held that an individual is entitled to more than "some due process" insofar as redress or relief within the context of a name-clearing hearing is concerned.

In contrast to the ruling in Johnston, in Matter of Murphy v City of New York, Appellate Division, First Department, 35 A.D.3d 319, the court ruled that John J. Murphy was entitled to a name clearing hearing following his “coerced retirement” from his position with the New York City Employees’ Retirement System.

Here the Retirement system conceded that the element of dissemination has been satisfied. Murphy had sufficiently alleged that the report prepared by Retirement System personnel contains inaccuracies and that the report's conclusions are stigmatizing, “as they arguably accused Murphy of immorality.” Regardless whether Murphy resigned or was fired, the court said that he has satisfied the requirement of loss of employment that is necessary to demand a name-clearing hearing.

Determining the creditability of a witness

Determining the creditability of a witness

Sarmiento v Newsday, 287 A.D.2d 851

Newsday dismissed Marta Sarmiento from her position after she allegedly uttered a racial epithet in Spanish to a fellow employee in violation of Newsday's rules governing its employees’ conduct. When Sarmiento applied for unemployment insurance, her application was denied on the ground that she had lost her employment due to her misconduct.

Sarmiento appealed and ultimately the Unemployment Insurance Appeals Board, affirming the decision of its Administrative Law Judge [ALJ], ruled that Sarmiento was entitled to benefits. The ALJ had found Sarmiento's “testimony to be the more credible and lacking any disinterested witnesses to the incident in question.” Newsday appealed.

The Appellate Division, Third Department, affirmed the Board's determination, holding that while “[o]ffensive conduct in the workplace, including the use of abusive language, can be found to constitute disqualifying misconduct,” here the only direct evidence that Sarmiento uttered a racial slur was given by the alleged victim thereof who had admittedly been at odds with claimant for some time. Accordingly, the Board's decision was based on it view as to the credibility of the testimony of the witnesses.

The issue of credibility is one for the Board to resolve and as there is substantial evidence to support the Board's decision finding claimant entitled to receive unemployment insurance benefits, the court declined to overturn its ruling.

Judicial review of position classification decisions

Judicial review of position classification decisions

Matter of Civil Serv. Employees Assn., Inc., Local 1000, AFSCME, AFL-CIO v State of New York Unified Ct. Sys., 35 A.D.3d 1005, 826 N.Y.S.2d 481

Observing that when a position classification decision is made, "[t]he courts have the power to reverse or modify a particular classification . . . [only] if it is 'wholly arbitrary or without any rational basis,'" the Appellate Division dismissed CSEA’s attempt to compel the Office of Court Administration’s Chief Administrative Judge to reclassify certain Court Clerks (JG-18) positions to Senior Court Clerk (JG-21).

In the words of the Appellate Division: “[s]o long as the [position] classification determination has a rational basis, this Court may not disturb it even if there are legitimate grounds for a difference of opinion.”

CSEA argued that the Office of Court Administration’s decision to eliminate the position of Senior Court Clerk in the Third and Fourth Judicial Departments, while retaining the Senior Court Clerk position in the First and Second Judicial Departments, had no rational basis because there were no differences in the job duties of Court Clerks upstate and Senior Court Clerks downstate.

The Appellate Division, pointing out that by law the Court Clerks in the First and Second Judicial Departments are peace officers, rejected CSEA’s argument that the additional duties expected of peace officers are not relevant as they are not mentioned in the job description for Senior Court Clerk. It said that “Repeating in the job standard what has been conferred by the Legislature would be unnecessary.”

As to CSEA’s claim that it was unlikely that “Senior Court Clerks will be called upon to provide backup to uniformed courtroom security,” the court said that this is not determinative as the duties required from title classifications need only be performed "as the need occurs."

CSEA also contended that the Office of Court Administration’s decision “violates Civil Service Law §115.” §115 states that it is "the policy of the state to provide equal pay for equal work." Although CSEA argued “that the peace officer status for Senior Court Clerks is meaningless and that the clerical duties of both titles are identical,” the Appellate Division said that it disagreed that the peace officer status of the Senior Court Clerk is meaningless, concluding that Senior Court Clerks and Court Clerks do not “provide equal work.”

Employee must be in close physical proximity to ill family member to satisfy FMLA "To Care For" requirement

Employee must be in close physical proximity to ill family member to satisfy FMLA "To Care For" requirement
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.

Girard Baham requested and was granted FMLA leave to care for his daughter, who fell and suffered a serious head injury while the family was on vacation. The daughter was airlifted from Honduras to Miami, where the family remained in the hospital while their daughter recovered.

Baham was on provisionally approved FMLA leave from March 20 through May 5, 2008.  From April 12 through April 29, however, Baham returned to their home in Texas in response to neighborhood association letters complaining of an untended yard.  He also cleaned up the house, and added padding to sharp edges in the home to protect his daughter upon her return.  Baham's wife remained in Florida while caring for their daughter.  Baham talked with his wife by telephone every day.  Baham did not, however, inform his employer of his returned to Texas.

On his return, Baham was informed that his FMLA paperwork was incomplete, and he was asked to provide the missing information.  Baham let work later that day, leaving his keys and ID card with the security guard. The employer interpreted this act as a resignation, and sent a letter confirming his termination a few days later.  Baham sued, alleging that his termination violated the FMLA.  The federal trial court dismissed the suit, finding that Baham failed to establish that he "cared" for his daughter within the meaning of the FMLA while he was in Texas.  Baham appealed the case to the Fifth Circuit.

To be entitled to FMLA leave, an employee must show that he is needed "to care for" a family member with a serious health condition.  29 USC 2612(a)(1)(C).  In addition to providing physical care, the employee is entitled to leave in order to provide psychological comfort and reassurance which would be beneficial to his or her child or to make arrangements for changes in care such as transfer to a nursing home.  29 CFR 825.116(a).

Baham argued that he was entitled to FMLA leave while he was in Texas away from his daughter based on frequent telephone contact wit his wife, who was caring for their daughter.  The Fifth Circuit disagreed.  Following the lead of the Ninth Circuit in Telllis v. Alaska Airlines, Inc., 414 F.3d 1045, 1047 (9th Cir. 2005), the Fifth Circuit found that the "to care for" requirement required the employee to provide "some actual care" while in "close and continuing proximity to the ill family member."  While Baham was in Texas he was not in close continuing proximity to his daughter.

The Court also opined that cutting the lawn, cleaning the house, and preparing the house by padding furniture, did not qualify as "care" under the FMLA.  The Court noted that it found no authority holding that merely remaining in frequent telephone contact with a relative while in another state for weeks constitutes providing care for purposes of the FMLA.

 The Fifth Circuit afformed the judgment of the district court dismissing Bagahms FMLA claim.
Comment:  The Fifth Circuit joined the Ninth Circuit in imposing a requirement that "caring for" an ill family member requires the provision of some actual care in close and continuing proximity to the ill family member.  With respect to the "actual care" requirement, the decision is not surprising in that Baham's telephone contacts were with his wife, not his daughter or his daughter's physicians.  The situation would doubtless have been different had he been consulting with his wife and doctors about treatment options for his daughter. That activity would likely be viewed as providing "some actual care."  Cutting the lawn, and cleaning and preparing the house for the daughter's return home was apparently too attenuated from "physical or psychological care" to fall within the protections of the FMLA, at least for the Fifth Circuit.

Interestingly, neither the Statute nor the DOL FMLA regulations specifically impose a "close and continuing proximity" requirement for an employee to "care for" an ill family member.  Query whether in a world of real-time internet video/audio access to the daughter's hospital room whether an employee could not provide psychological care remotely.  With the right facts, I believe the court-manufactured "close and continuing proximity" care requirement will fall as a relic of a past age in light of the new technological reality.          
 Baham v. McLane Foodservice, Inc., No. 10-10944 (5th Cir. July 1, 2011)  http://www.ca5.uscourts.gov/opinions/unpub/10/10-10944.0.wpd.pdf

Extraordinary salary increases excluded in determining the individual’s final average salary for retirement purposes.

Extraordinary salary increases excluded in determining the individual’s final average salary for retirement purposes.

Matter of Palandra v New York State Teachers' Retirement Sys., 011 NY Slip Op 04357, Appellate Division, Third Department
 

Maria Palandra was employed by the Elmont Union Free School District and eventually became its superintendent of schools. In 2000, Palandra and the school district entered into a contract setting her salary and providing that she would receive payment for her accumulated vacation and sick leave upon her retirement.

Subsequently the parties entered into a new agreement that eliminated the career increment provision and barred Palandra from receiving payment for unused leave time upon her retirement. Instead, Palandra’s was retroactively raised to $224,268, with increases in following years capped at 5%.

Ultimately the New York State Teachers’ Retirement System [TRS] excluded those increases from the calculation of Palandra's final average salary and reduced her retirement benefits accordingly. Palandra sued but Supreme Court dismissed her petition.

The Appellate Division affirmed the lower court’s ruling, noting that “In order to calculate [Palandra’s] retirement benefits, [TRS] must rely upon her final average salary, defined as "the average regular compensation earned . . . during the three years of actual service immediately preceding [her] date of retirement" as mandated by Education Law §501[11] [b]. Accordingly, the Retirement System will act to prevent the artificial inflation of that figure by excluding "any form of termination pay or compensation otherwise paid in anticipation of retirement."

The court explained that Palandra had received extraordinary salary increases in the 2001-2002 and 2002-2003 school years and, indeed, had altered the terms of prior agreements to do so. Moreover, the latter increase was accompanied by the elimination of her contractual rights to obtain payments for accumulated leave time upon her retirement and an optional one-time only increment, "items that were facially excludable from her final average salary.”

The Appellate Division, conceding that “material in the record that could support a different result,” held that the Retirement System could “rationally concluded from the above evidence that the 2001-2002 and 2002-2003 salary increases were made in anticipation of [Palandra’s] retirement and excluded them from her final average salary."

The court also rejected Palandra’s claim that the System's “otherwise rational determination” was rendered arbitrary and capricious by the delay in issuing it.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04357.htm

Employee must be in close physical proximity to ill family member to satisfy FMLA “to care for” requirement

Employee must be in close physical proximity to ill family member to satisfy FMLA “to care for” requirement

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.

Girard Baham requested and was granted FMLA leave to care for his daughter, who fell and suffered a serious head injury while the family was on vacation. The daughter was airlifted from Honduras to Miami, where the family remained in the hospital while their daughter recovered.  

Baham was on provisionally approved FMLA leave from March 20 through May 5, 2008.  From April 12 through April 29, however, Baham returned to their home in Texas in response to neighborhood association letters complaining of an untended yard.  He also cleaned up the house, and added padding to sharp edges in the home to protect his daughter upon her return.  Baham's wife remained in Florida while caring for their daughter.  Baham talked with his wife by telephone every day.  Baham did not, however, inform his employer of his returned to Texas. 

On his return, Baham was informed that his FMLA paperwork was incomplete, and he was asked to provide the missing information.  Baham let work later that day, leaving his keys and ID card with the security guard. The employer interpreted this act as a resignation, and sent a letter confirming his termination a few days later.  Baham sued, alleging that his termination violated the FMLA.  The federal trial court dismissed the suit, finding that Baham failed to establish that he "cared" for his daughter within the meaning of the FMLA while he was in Texas.  Baham appealed the case to the Fifth Circuit.

To be entitled to FMLA leave, an employee must show that he is needed "to care for" a family member with a serious health condition.  29 USC 2612(a)(1)(C).  In addition to providing physical care, the employee is entitled to leave in order to provide psychological comfort and reassurance which would be beneficial to his or her child or to make arrangements for changes in care such as transfer to a nursing home.  29 CFR 825.116(a). 

Baham argued that he was entitled to FMLA leave while he was in Texas away from his daughter based on frequent telephone contact wit his wife, who was caring for their daughter.  The Fifth Circuit disagreed.  Following the lead of the Ninth Circuit in Telllis v. Alaska Airlines, Inc., 414 F.3d 1045, 1047 (9th Cir. 2005), the Fifth Circuit found that the "to care for" requirement required the employee to provide "some actual care" while in "close and continuing proximity to the ill family member."  While Baham was in Texas he was not in close continuing proximity to his daughter.  

The Court also opined that cutting the lawn, cleaning the house, and preparing the house by padding furniture, did not qualify as "care" under the FMLA.  The Court noted that it found no authority holding that merely remaining in frequent telephone contact with a relative while in another state for weeks constitutes providing care for purposes of the FMLA. 

The Fifth Circuit affirmed the judgment of the district court dismissing Bagahm’s FMLA claim.

Mr. Bosland Comments:  The Fifth Circuit joined the Ninth Circuit in imposing a requirement that "caring for" an ill family member requires the provision of some actual care in close and continuing proximity to the ill family member.  With respect to the "actual care" requirement, the decision is not surprising in that Baham's telephone contacts were with his wife, not his daughter or his daughter's physicians.  The situation would doubtless have been different had he been consulting with his wife and doctors about treatment options for his daughter. That activity would likely be viewed as providing "some actual care."  Cutting the lawn, and cleaning and preparing the house for the daughter's return home was apparently too attenuated from "physical or psychological care" to fall within the protections of the FMLA, at least for the Fifth Circuit.

Interestingly, neither the Statute nor the DOL FMLA regulations specifically impose a "close and continuing proximity" requirement for an employee to "care for" an ill family member.  Query whether in a world of real-time Internet video/audio access to the daughter's hospital room whether an employee could not provide psychological care remotely.  With the right facts, I believe the court-manufactured "close and continuing proximity" care requirement will fall as a relic of a past age in light of the new technological reality.   

        

Baham v. McLane Foodservice, Inc., No. 10-10944 (5th Cir. July 1, 2011)  http://www.ca5.uscourts.gov/opinions/unpub/10/10-10944.0.wpd.pdf

Eleventh Amendment immunity of a public entity

Eleventh Amendment immunity of a public entity

Aguilar v. The New York Convention Center Operating Corp., USDC SDNY, Judge Motley, 2001 WL 1360229

The basic issue in the Aguilar case concerned a claim of immunity under the Eleventh Amendment.

Fifty individual plaintiffs, each of whom is either female or a member of a racial or ethnic minority, currently or formerly employed by the Jacob K. Javits Convention Center, sued the Center alleging that it is managed by a group of “white Irish males” who have engaged in widespread race and gender discrimination. The Javits Center asked the District Court Justice to dismiss the case, claiming it had Eleventh Amendment Immunity from such litigation.

The District Court said that “It is well settled that the Eleventh Amendment bars suits against a state in federal court unless Congress has abrogated or the state has waived its sovereign immunity,” citing Pennhurst State School and Hospital, 465 U.S. 89.

However, here the fifty complainants did not sue the State of New York but rather an entity created by the State -- the New York Convention Center Operating Corporation [NYCCOC] that operates the Javits Center. Accordingly, the initial for the court to resolve:

Is NYCCOC more like an “arm of the state,” in which case the Eleventh Amendment applies, or more like “a municipal corporation or other political subdivision,” in which case the Eleventh Amendment does not apply.

In Mancuso v New York State Thruway Authority, 86 F.3d 289, the Second Circuit affirmed its six-factor inquiry for determining whether a state-created entity enjoys Eleventh Amendment immunity under the “arm of the state” doctrine:

(1) how the entity is referred to in the documents that created it;

(2) how its governing members are appointed;

(3) how it is funded;

(4) whether its function is traditionally one of local or state government;

(5) whether the state has veto power over its actions; and

(6) whether the entity's financial obligations are binding upon the state.

The decision notes that if these factors point in different directions, the tension must be resolved mindful of the Eleventh Amendment's twin rationales -- protecting states' treasuries and protecting their dignity.

The first factor -- how the entity is referred to in the documents that created it -- did not support or defeat a finding of immunity. NYCCOC was created as a “body corporate and politic” constituting a “public benefit corporation.” On one hand, the statute creating the NYCCOC characterize its function as an “essential government function” while it then enumerates ways in which the state may “cooperat[e]” and “assist” the NYCCOC in the performance of its duties, suggesting that the legislature considered the NYCCOC and the state to be distinct entities.

The Court concluded that here the first Mancuso factor is neutral.

In contrast, the court found that the second factor -- how NYCCOC's governing members are appointed -- weighs squarely in favor of immunity as they were appointed by the governor and by leaders of the legislature.

The third factor -- how the NYCCOC is funded -- was also viewed a neutral by the court as NYCCOC could both issue bonds and collect rents and fees for the use of its facilities.

Was NYCCOC performing a role that “is traditionally one of state or local government?” No, said the court, the operation of a convention center cannot be considered a traditional state function.

As to the fifth factor, the absence of any power of the state to veto any NYCCOC weighed against a finding of immunity. Although the chair of the NYCCOC's board of directors serves at the pleasure of the governor, he or she does so only in his or her capacity as chair. No member of the board, including the chair with respect to his or her status as a “member of the board, may be removed from his or her office except for cause.

The sixth factor -- whether the entity's obligations are binding on the state -- weighs heavily against immunity. Here the court noted that because the “[t]he obligations of the corporation shall not be debts of the state,” that “the state shall not be liable thereon,” and that “such obligations shall not be payable out of any funds other than those of the corporation.”

The court's conclusion: NYCCOC should not be deemed an “arm of the state” for Eleventh Amendment purposes, i.e., it is more like a municipality or a political subdivision of a state than an entity acting as an alter ego of a state.

Filing a timely notice for disability retirement benefits critical to eligibility for such benefits

Filing a timely notice for disability retirement benefits critical to eligibility for such benefits

Wilson v NYSERS, 288 AD2d 602

Theodore J. Wilson neglected to file the written notice required by Retirement and Social Security Law [RSSL] Section 363-c (e) (a) in order to claim accidental disability retirement benefits. As a result, the Retirement System rejected his application for such benefits.

Wilson appealed, arguing that he had provided the required notice because he had filed Workers' Compensation claims, which was an option available to him, citing RSSL Section 363-c [e] [b] [1].

Unfortunately, this did not offer a solution to Wilson’s problem because Wilson had not filed his written claim for workers' compensation benefits within the 30-day period provided by Workers' Compensation Law Section 18.

While Wilson had apparently gave oral notice of the occurrence and thereby provided the employer with actual knowledge of the occurrence within the 30-day period, which would be sufficient to permit the Workers' Compensation Board to excuse the lack of timely written notice, the Appellate Division, citing Spahn v Regan, 163 AD2d 642, said:

This court has repeatedly stated that a decision of the Workers' Compensation Board to excuse a petitioner's failure to comply with the provisions of Workers' Compensation Law Section 18 is not binding upon respondent [Comptroller] for accidental disability retirement purposes and does not alter the fact that timely notice of the compensation claim was not given.

 

The Appellate Division said that it found no reason to deviate from this holding notwithstanding the fact that Wilson's application was for performance of duty disability retirement benefits.

The lesson here: It is essential that the individual file the required Section 363-c (e) (a) notice with the Retirement System in a timely fashion.

Freedom of Law only applies to public entities

Freedom of Law only applies to public entities

McBride v Franklin, 288 AD2d 130

The McBride decision demonstrates that only a public entity is subject to the provisions of New York States' Freedom of Information Law [FOIL], (Section 84, Public Officers Law).

Nathan McBride filed a petition in a New York State Supreme Court in an effort to compel Jessie T. Franklin to disclose certain information that McBride contended FOIL required be made available to the public. When the Supreme Court dismissed his petition, McBride appealed, only to have the Appellate Division affirm the lower court's determination.

The Appellate Division pointed out that McBride's petition was properly dismissed since Franklin, a private investigator hired by McBride's attorneys in a criminal manner, is not an “agency” subject to FOIL's disclosure requirements and thus there was no authority for a court directing that Franklin provided the information McBride had demanded.

Workers’ compensation and Section 207-a/207-c disability claims

Workers’ compensation and Section 207-a/207-c disability claims

Balcerak v Nassau County, Ct. of Appeals, 93 NY2d 808

If a police officer is awarded workers’ compensation benefits before his or her employer decides whether or not he or she is eligible for disability benefits under Section 207-c of the General Municipal Law, may the appointing authority still deny the individual’s application for Section 207-c benefits? Yes, said the Court of Appeals, in a unanimous opinion, reversing a decision by the Appellate Division to the contrary.

Until this ruling, various appellate division and Supreme Court decisions held that the employer was prevented from rejecting the police officer’s Section 207-c claim under such circumstances under the doctrine of collateral estoppel. In fact, one Supreme Court justice recently ruled that the mere filing of a workers’ compensation claim by the employer, which it was mandated to do by law, prevented it from denying the individual’s Section 207-c application.

In Balcerak, the Court of Appeals concluded that Gregory Balcerak, a Nassau County corrections officer was not automatically entitled to Section 207-c benefits simply because the Workers’ Compensation Board had determined that he had suffered a work-related injury and that the doctrine of collateral estoppel did not apply in such cases.*

Balcerak had been injured in an automobile accident in June 1996, just after leaving from his assignment to special duty on the “midnight shift.” Nassau rejected his application for Section 207-c benefits for his “injury sustained while on duty form” on September 9, 1997. The Workers’ Compen­sation Board, however, had approved Balcerak’s application for workers’ compensation benefit before the county had made its determination.

Balcerak sued, demanding that Nassau provide him with “Section 207-c benefits, retroactive to the date of the accident.

A Supreme Court justice concluded that the Nassau was bound by the Workers’ Compensation Board’s finding that Balcerak was injured while on duty. The Appellate Division affirmed, agreeing that the collateral estoppel doctrine applied against the County.

The Court of Appeals reversed, holding that the Workers’ Compensation Law and the General Municipal Law are discrete, independent compensation systems and that a favorable Workers’ Compensation determination does not, therefore, automatically entitle an employee to the special benefits provided by Section 207-c.**

According to the ruling, the Workers’ Compensation Board’s determination does not automatically preclude a municipality’s discrete decision on a General Municipal Law Section 207-c application. The distinction between the two laws made by the Court of Appeals:

1. Section 207-c benefits were meant to fulfill a narrow and important purpose ... to compensate specified municipal employees for injuries incurred in the performance of special work related to the nature of heightened risks and duties.***

2. Workers’ Compensation is a general and comprehensive social program designed to provide all injured employees with some scheduled compensation and medical expenses, regardless of fault for ordinary and unqualified employment duties.

In view of this ruling, it appears that in evaluating a claim for Section 207-c benefits, the appointing authority should:

1. Determine if an individual is unable to perform the duties of his or her position because of a disability.

2. If it is determined that the individual is disabled, was the individual disabled as the result of a work-related injury or disease? If the answer is no, the individual is probably eligible for disability leave pursuant to Section 72 of the Civil Service Law.

3. If it is determined that the individual was disabled on the job, was the injury or disease at work incurred in the performance of “official duties” as a police officer? If the answer is no, the individual is probably still eligible for leave pursuant to Section 71 of the Civil Service Law, Workers’ Compensation Leave.

4. If it is determined that the individual was disabled as a result of his or her performing “official duties,” he or she is presumably eligible for Section 207-c benefits as provided by law.

Some collective bargaining agreements negotiated pursuant to the Taylor Law set out procedures for the processing of Section 207-c applications.

* Although this case concerned Section 207-c, which covers police officers, while Section 207-a of the General Municipal Law applies to firefighters injured in the line of duty, the rationale adopted by the Court of Appeals in making its determination would probably be followed in a similar Section 207-a case.

** This decision did not end the matter regarding Balcerak’s eligibility for 207-c benefits. The Court of Appeals said that its ruling “resolves only the collateral estoppel issue....” The other issue in this action -- did Nassau have “a rational basis for its decision denying Balcerak Section 207-c benefits,”, had not yet addressed by the Appellate Division. Accordingly, the case was returned to the Appellate Division for its consideration of this issue.

*** N.B. Subsequently the Court of Appeals revisited and clarified its view regarding the availability of Section 207-c benefits based on a perception of “heightened risks and duties,” holding that “[I]n order to be eligible for Section 207-c benefits, a covered municipal employee need only prove a ‘direct causal relationship between job duties and the resulting illness or injury’.” (see Matter of Theroux v Reilly, 1 NY3d 232 

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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