Only a governmental not-for-profit corporation’s records is subject to FOIL

Only a governmental not-for-profit corporation’s records is subject to FOIL

Matter of Rumore v Board of Educ. of City School Dist. of Buffalo, . 35 A.D.3d 1178

Philip Rumore, president of the Buffalo Teachers Federation, sought a court order directing the Board of Education of the City School District of Buffalo (Board) and the Education Innovation Consortium [EIC] to provide him with certain records and information pursuant to the Freedom of Information Law [FOIL] (Public Officers Law Article 6). The records sought included EIC’s salary and budgetary records.

Supreme Court granted Rumore’s petition in part by directing the Board to obtain those records from EIC and then to make them available to Rumore for copying. The Appellate Division disagreed and ruled that the lower court should have dismissed Rumore’s petition in its entirety.

The ruling points out that FOIL requires the disclosure of the records of an “agency”. The term “agency” is defined as "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature" (Public Officers Law §86 ).

Although a not-for-profit corporation may fall within the definition of an agency subject to FOIL if its purpose is governmental and it has the attributes of a public entity, here, said the court, the record demonstrated that EIC does not have those attributes.

Among the elements the court found persuasive in finding that EIC was not a governmental body were the following:

EIC's budget is not approved by any governmental agency;

EIC has a self-elected Board of Directors;

The School District has no authority to hire or discharge any employee of EIC;

EIC did not have offices in any District-owned building;

EIC provides services to the District on a fee-for-services basis; and

EIC provides services to other clients as well as the District

Thus, said the court, Supreme Court “erred in concluding that EIC is an agency subject to the mandates of FOIL.”

In addition, the Appellate Division said that it agreed with the arguments advanced by the Board and EIC that because the records sought by Rumore are not "kept, held, filed, produced or reproduced by, with or for" the District by EIC, they do not fall within the ambit of FOIL.

Presumption of work-connected heart attack for the purposes of Retirement and Social Security Law Section 363-a(1)

Presumption of work-connected heart attack for the purposes of Retirement and Social Security Law Section 363-a(1)

Tortorello v McCall, App. Div., 286 AD2d 841, Motion for leave to appeal denied, 97 NY2d 607

Roni Tortorello's husband, who was employed as a lieutenant in the Rockland County Sheriff's Department, collapsed at home after jogging earlier in the day and was pronounced dead at a hospital emergency room. The cause of death was listed as coronary occlusion due to coronary arteriosclerosis and thrombosis, with a prior myocardial infarction listed as a contributing condition.

The New York State Employees' Retirement System [ERS], concluding that Lt. Tortorello had not sustained an accident in service on the date of his death, rejected his widow's application for an accidental death benefit. ERS determined that Lt. Tortorello's death occurred at home on his day-off after jogging and thus was not the result of an accident sustained while in service.

Tortorello's widow sued, claiming that she was entitled to accidental death benefits because Section 557 of the Retirement and Social Security Law provides that “any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence”.

The Appellate Division disagreed with this theory, noting that the relevant statutory “heart presumption” clause provides that “any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident, unless the contrary be proved by competent evidence.” Accordingly, the “heart presumption” is a rebuttable presumption.

Here there was no medical evidence identifying any particular work-related incident as a possible cause of Lt. Tortorello coronary occlusion. Under these circumstances, and because it is not necessary that all possible accidental causes be disproved in order to rebut the statutory presumption, ERS could rationally focus on the day of Lt. Tortorello fatal cardiac event as the date of the presumptive accident. In effect, the court concluded that under the facts in this case, ERS had “rebutted the presumption.”

The court ruled that since the day on which he suffered the heart attack was a scheduled day off for Lt. Tortorello and as there was no evidence that he actually performed any of his police duties that day, ERS could rationally conclude that decedent did not sustain an accident in service on that day.

The Appellate Division commented that ERS has interpreted the “in service” requirement for an accidental death benefit as the equivalent of the “in service” requirement for accidental disability benefits ... and that it saw no basis to disturb that interpretation.

The court's conclusion: Tortorello's claim that the stress of late husband's duties caused or contributed to his disease of the heart and resulting coronary occlusion is unsupported by any medical evidence in the record. Further, risks inherent in her late husband's routine police duties are not accidental in nature.

In identical language, Retirement and Social Security Law Section 363-a(1) provides a “heart presumption” for firefighters. Presumably the court's rationale in deciding the Tortorello case would be applied in a similar situation involving a firefighter.

Evidence of pretext bars summary judgment of a Title VII complaint alleging unlawful discrimination because of race

Evidence of pretext bars summary judgment of a Title VII complaint alleging unlawful discrimination because of race

Curry v Menard, Inc., CA7, 00-4219, 270 F.3d. 473

Demonstrating that other employees of a different race were not subjected to the same disciplinary action for the same offense is sufficient to establish “pretext” for the purposes of Title VII.

Sylvia Curry, a black woman employed as a cashier at Menard's Sokie, Illinois store, complained that Menard Inc. had discharged her from her position because of her race.

Menard, on the other hand, said that Curry had been discharged in accordance with its “progressive discipline” policy after it found shortages in her cash receipts on three different occasions. The district court granted Menard's motion for summary judgment. The Court of Appeals overturned the lower court's ruling, noting that From January 1, 1997, to December 31, 1998, Curry was the only cashier to be suspended or terminated for violating the store's progressive discipline policy although the record shows that had the policy been strictly enforced sixteen other cashiers should have been suspended or terminated in that same time period.

The Circuit Court said that summary judgment is appropriate if there is no genuine issue as to any material fact. Under such circumstances the moving party is entitled to judgment as a matter of law. As Curry did not provide any direct evidence of discrimination because of her race, she had to prove a prima facie case of discrimination under the burden-shifting method. To establish a prima facie case of discrimination, Curry was required to show that:

1. She belongs to a protected class;

2. She performed her job according to Menard's legitimate expectations;

3. She suffered an adverse employment action; and

4. Similarly situated employees outside the protected class were treated more favorably.

A prima facie case creates a presumption of discrimination and shifts the burden to the employer to produce evidence of a legitimate, race-neutral reason for the adverse action taken against the employee. If the employer meets this burden, the plaintiff then has the burden of showing that the employer's stated “nondiscriminatory reason” is merely a pretext for discrimination.

Finding that Curry proved a prima facie case of unlawful discrimination, the court said that Menard contended that Curry was not meeting its legitimate performance expectations because she had accumulated three “cash drawer” violations. Arguing that it had dismissed Curry in accordance with its progressive discipline policy, Menard claimed it had shown that it had terminated Curry for nondiscriminatory reasons.

Curry, then, was required to show that Menard's explanation of its action was pretext for unlawful discrimination.

The Circuit Court decided that Curry had met this burden by establishing that two employees, Margaret Venetico and Anne Merurio, both non-black cashiers, had two or more cash discrepancies but were neither suspended nor terminated. The court decided that this was sufficient evidence of alleged pretext to survive Menard's motion for summary judgment.

The key element here was Curry's evidence that prior to, and after, the tenure of Michael Stanley as the manager of the store none of the cashiers who had discrepancies, including Curry, was disciplined under the company's “progressive discipline” policy. In contrast, while Stanley was the manager there were three employees who had cash shortages but only Curry was fired.

This, said the court, leaves a material question of fact of whether terminating Curry for breaching the policy was a pretext.

Accumulating tenure eligibility credit while serving as an “intern teacher” not authorized

Accumulating tenure eligibility credit while serving as an “intern teacher” not authorized

Matter of Berrios v Board of Educ. of Yonkers City School Dist., 2011 NY Slip Op 05804, Appellate Division, Second Department

The genesis of this case was the termination of Jesus Berrios by the Board of Education of the Yonkers City School District without a hearing. Berrios, contending that he had attained tenure in his position with the District by estoppel or acquiescence,*complained that the Board’s action violated his rights to due process as set out in Education Law §3020-a.

The thrust of Berrios’ argument was that he had “accumulate tenure credit” while teaching under “an intern teaching acquiesce certificate.” The Appellate Division rejected his theory, holding that in the absence of holding a valid teaching certificate, in contrast to being employed pursuant to an “intern certificate,” a teacher’s service could not be credited toward completion of a required probationary period.

The Appellate Division ruled that Berrios was terminated while serving as a probationary employee and such personnel may be terminated at any time during the probationary period without being given a reason and without a hearing.**

Another element in this case concerned so-called “Jarema Credit.”*** Noting that “[s]ervice as a substitute teacher does not constitute probationary service for purposes of obtaining tenure as a regular teacher,” the Appellate Division observed that the Court of Appeals had held that a substitute teacher's three-year probationary period can be reduced to one year if the individual is eligible for "Jarema" credit.

Where, however, a teacher has not served as a regular substitute in the year immediately preceding a probationary appointment, such service will not count towards Jarema credit. In addition, said the court, case law supported its conclusion that Jarema credit cannot be awarded to a regular substitute teacher who does not possess a valid New York State teacher's certificate.

The court explained that “[a]llowing a substitute teacher to accumulate tenure credit for time spent teaching pursuant to an intern certificate would mandate that a school board grant or deny tenure to that teacher before he or she obtained a valid teacher's certificate.”

Rejecting Berrios’ contention that he acquired tenure by estoppel, the Appellate Division noted that a contrary determination would discourage school districts from employing students authorized to teach pursuant to intern certificates, thereby depriving both the school districts and the teachers of that valuable experience.

In light of the foregoing, the Appellate Division decided that Supreme Court correctly determined that Berrios did not earn tenure by estoppel because his first year of teaching as a substitute pursuant to an intern certificate was not creditable toward tenure. Thus, the Supreme Court was correct in denying his the petition, and properly dismissed the proceeding.

* Tenure by estoppel or acquiesce results "when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term" [McManus v Bd. of Educ. of Hempstead UFSD, 87 NY2d 183].

** See Education Law §2509[1][a]; §3014[1] N.B. The summary termination of a probationer, however, will not be permitted if it is determined to have been for an unconstitutional or unlawful purpose or reason.

*** Typically referred to by the name of the bill's sponsor, then Assemblyman Stephen J. Jarema, Education Law §2573[1][a], in pertinent part, provides that “Teachers and all other members of the teaching staff, authorized by section twenty-five hundred fifty-four of this article, shall be appointed by the board of education, upon the recommendation of the superintendent of schools, for a probationary period of three years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years … the probationary period shall be limited to one year….”

:

**** Prior to February 2, 2004, the entry-level certificate for classroom teachers were denominated "provisional" and are now denominated "initial."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05804.htm

Arbitrating a grievance after the Taylor Law contract expires

Arbitrating a grievance after the Taylor Law contract expires

Uniformed Fire Fighters Assoc. Inc. v City of Mount Vernon, NYS Supreme Court, Justice Lefkowitz, Not selected for publication in the Official Reports

The 1996-2000 collective bargaining agreement between the Firefighters Union and the City of Mount Vernon provided that an issue involving random drug testing should be resolved by December 1, 1997 or it would be submitted to arbitration. The issue, however, was neither resolved nor submitted to arbitration.

The collective bargaining agreement expired on December 31, 2000. As no successor agreement had been negotiated, the provisions of Section 209-a(1) -- the so-called Triborough Amendment -- were triggered.*

On July 30, 2001 the city demanded that the drug testing issue be submitted to arbitration. The Union objected and asked State Supreme Court Justice Lefkowitz to stay the arbitration. Justice Lefkowitz granted the Union's motion, ruling that the City's demand to submit the matter to arbitration was untimely since the collective bargaining agreement had expired prior to its making the demand.

According to Justice Lefkowitz:

Absent conduct of the parties evincing survival of the arbitration clause notwithstanding expiration of the contract or an intent of survival contained within the parameters of the contract, an otherwise arbitrable dispute is not subject to arbitration upon expiration of the agreement “except as to rights and wrongs, which had already come into existence.

 

Justice Lefkowitz said that Section 209-a(1), making it an improper labor practice for a public employer to refuse to continue all the terms of an expired agreement until a new agreement is negotiated, applies only “insofar as the rights of the union are concerned.”

Justice Lefkowitz commented that “statutorily only the public employer is obligated to arbitrate with respect to the terms of the expired contract until a new agreement is effective."

Implicit in Justice Lefkowitz's interpretation: Section 209-a(1) provides that only the union may demand arbitration under the expired agreement's contract grievance procedure concerning an alleged violation of a term or condition contained the expired Taylor Law agreement.

However, in Schenectady v Lainhartsi, 177 AD2d 826, the Appellate Division, Third Department said that the expiration of a collective bargaining agreement did not result in the agreement's arbitration clause being unenforceable as Section 209-a(1) [see Footnote below] mandates the continuation of all of the terms of the expired agreement, including the arbitration provision. Presumably this means that the mandates set out in Section 209-a(1) apply equally to both the employer and the union.

In contrast, if a provision set out in an expired Taylor Law agreement itself contained a “sunset” provision, presumably that specific limitation would be observed and excluded from the mandates implicit in Section 209-a(1).

* Section 209-a(1) of the Civil Service Law, makes it an improper practice for a public employer “to refuse to continue all the terms of an expired agreement until a new agreement is negotiated.”

Surrender of prior contract benefit for a different benefit does not bar renegotiation of the new benefit in the future

Surrender of prior contract benefit for a different benefit does not bar renegotiation of the new benefit in the future

Mtr. of the Scotia-Glenville Central School District, Impasse procedure, PERB Case M200-080

A union agrees give up one employee benefit or accepts a lesser employee benefit in order to obtain, maintain or improve a different employee benefit. Is such a decision “permanent” insofar as subsequent demands to modify the benefit “bought” when the union agreed to the negotiated compromise? This was a consideration in the Scotia-Glenville case.

The Scotia-Glenville School Employees Local 766 and the Scotia-Glenville Central School District declared an impasse in collective bargaining.

In the impasse resolution procedure that followed, one of the issues before PERB Fact Finder Ben Falcigno was the District's demand that employee contributions for health insurance be increased.

Local 766 objected, contending that its prior decisions to take less pay in favor of continuing the higher level of employer health insurance contributions on behalf of unit members, had, in essence, frozen the employees' contributions for health insurance at levels previously agreed upon.

Falcigno rejected the Local's argument. He said that the Local's claim that what was done at one point in time is dispositive of all future considerations concerning the subject in dispute is inappropriate unless the actual agreement clearly says that such is to be the case. Without such a clear and specific contract provision, the expiration of a collective bargaining agreement sets the stage “for a whole new consideration of what is appropriate for these parties for the period of the newly negotiated agreement” by the fact finder.

Five-year labor agreement with the Public Employees Federation tracks agreement recently agreed upon with CSEA

The following press release was posted by the Governor's Press office on July 16, 2011 at 12:10 p.m.

GOVERNOR CUOMO ANNOUNCES FIVE YEAR LABOR AGREEMENT WITH THE PUBLIC EMPLOYEES FEDERATION

Governor Andrew M. Cuomo today announced that his administration has reached a five-year labor agreement with the New York State Public Employees Federation (PEF). PEF is one of the largest local white-collar unions in the United States and is New York's second-largest state-employee union. PEF represents 54,000 state employees.

The agreement mirrors an agreement reached last month with the Civil Service Employees Association (CSEA) and includes a freeze on base wages for 3 years and a redesign of the employee health care contribution and benefit system, saving $75 million this fiscal year, $92 million next fiscal year, and almost $400 million over the contract term. If adopted by the state's other collective bargaining units, the agreement will reduce workforce costs by over $1.5 billion over the course of the agreement, averting PEF layoffs due to the state’s fiscal crisis. “

"This agreement reflects the financial reality of the times. I am pleased that we could avoid these layoffs, protect the workforce and the taxpayer," Governor Cuomo said.

"This was a difficult agreement to reach, but with our members' jobs in peril and the state’s fiscal hardship we've stepped up and made the necessary sacrifices," said PEF President Ken Brynien. "The agreement will preserve our members jobs and careers while bringing long term fiscal stability to the state. We are confident this is the best agreement that could be negotiated in the current environment."

As a result of this agreement, Director of State Operation Howard Glaser directed agencies to rescind the 20-day layoff notices that were sent out to members.

Base Wages: Under the five year agreement, there will be no general salary increase in Fiscal Year 2011-12; 2012-13; 2013-14. Employees will receive a 2 percent increase in 2014-15 and 2015-16.

2011-12: 0%
2012-13: 0%
2013-14: 0%
2014-15: 2%
2015-16: 2%

Savings: The 2011 wage agreement is $2.5 billion less costly to the state than the 2007 agreement, if adopted through the state workforce.

Health Care System Redesign: The agreement includes a series of reforms in the employee health care system which will save $54 million annually and $248 million over the contract term, for PEF alone.

Health Care Contributions: The agreement includes substantial changes to employee health care contributions bringing public employee benefits more in line with the private sector. The contribution for health care benefits have not changed in 30 years, while the cost of the state's health care program has increased 100 percent in the past decade. The agreement reflects a two percent increase in contributions for Grade 9 employees and below, and a six percent increase for Grade 10 employees and above. (Under the agreement, for example, the state will pay 69 percent of family coverage for a Grade 10 employee and above, and the employee will pay 31 percent. The prior split was 75 percent state/25 percent employee. For individual coverage, a Grade 10 employee and above will pay 16 percent and the state share will be 84 percent. The prior split was 10 percent employee/90 percent state).

Savings: The PEF agreement results in $42 million in annual savings from this provision, and $193 million over the contract term.

Health Care Opt Out: For the first time, the state is offering an opt-out option. Health care premiums cost $16,600 for family coverage and $7300 for individual coverage. Employees electing to opt out of the health insurance program must provide proof of alternative coverage and will receive $1000 or $3000 for the cessation of individual or family coverage, respectively. This will save the state thousands of dollars for each employee who opts out.

Savings: The opt-out will save $5.8 million annually and $25 million over the contract term for PEF alone.

Health Benefit Redesign: The health benefit plan system of co-pays, deductibles, and programs has been redesigned to encourage healthy choices and control costs of pharmaceutical products. For example, for the first time the plan will cover the use of nurse practitioners and "minute clinics" and encourage employees to use these services when appropriate instead of hospital emergency rooms.

Savings: The PEF savings for this provision are $8.6 million annually and $37 million over the contract term.

Deficit Reduction Leave: Under the agreement, employees will take a five day unpaid deficit reduction leave during fiscal year 2011-12 and four days unpaid leave during fiscal year 2012-13. The value of the days taken not worked will be deducted from employee pay over the remaining pay periods equally during the fiscal year in which they are taken. Employees will be repaid the value of the 4 days from 2012-13 in equal installments starting at the end of the contract term.

Savings: The furloughs will yield $360 million in savings if adopted by all bargaining units. Performance advances, longevity and retention payments: Performance advances and longevity payments will continue to be in effect. Current employees who remain active through 2013 will earn a onetime retention payment of $775 in 2013 and $225 in 2014 in recognition of working without a wage increase for three years.

Layoff Protection: PEF employees will receive broad layoff protection for fiscal year 2011-12 and 2012-13 arising from the $450 million budget gap. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the State's fiscal circumstances are not covered by this limitation.

The tentative agreement must be ratified by PEF rank and file members.

Negotiations for the State were led by a special team appointed by the Governor comprising Todd R. Snyder, Senior Managing Director of Rothschild Inc. and Co-Head of Rothschild's Restructuring and Reorganization group; and Joseph M. Bress, former head of the Governor's Office of Employee Relations and former Vice President of Labor Relations at Amtrak, under the direction of Howard Glaser, Director of State Operations.

###

Arbitrating an employee’s termination after a random drug test proved positive

Arbitrating an employee’s termination after a random drug test proved positive

Local 333, United Marine Division, International Longshoreman's Association, AFL-CIO, Petitioner-Appellant, v New York City Department of Transportation, 35 A.D.3d 211, Motion for leave to appeal denied, 9 N.Y.3d 805

A ferryboat deckhand employed by the New York City Department of Transportation [DOT] was terminated because he was unable to provide a urine sample during a random drug test. The test was administered eight days after DOT instituted a "Zero Tolerance Policy for Positive Drug and Alcohol Test Results."

DOT’s new policy was adopted in response to the Staten Island Ferry accident on October 15, 2003. That accident involved a DOT ferryboat pilot who had taken medically prescribed drugs colliding with a concrete pier. 11 passengers were killed and dozens of others injured as a result of the collision.

In addition to testing positive for drugs or alcohol, DOT’s zero tolerance policy applied if an employee refused to submit to a drug or alcohol test as defined under Title 49 Part 40 of the Code of Federal Regulations. It also applied if an individual failed to provide at least a 45 ml urine sample within 3 hours of their first unsuccessful attempt to provide a sample unless it was determined that there was a medical reason for such failure.

A deckhand was unable to produce a sufficient urine sample, despite consuming an unspecified amount of liquid during the 2½; hours between his two attempts. DOT terminated him pursuant to its “Zero Tolerance” policy. The union grieved the deckhand’s dismissal and ultimately the matter was submitted to arbitration.

The arbitrator modified the penalty of dismissal to a 30-day suspension after finding that there were mitigating circumstances -- DOT’s failure to produce key witnesses – that supported imposing a lesser penalty.

Supreme Court, however, refused to confirm the arbitration award, holding that the arbitrator exceeded his power because the “award violated public policy” and, considering the recent Staten Island Ferry accident, was irrational and "devoid" of common sense. The Appellate Division reversed the lower court’s ruling and affirmed the arbitrator’s determination.

The Appellate Division ruled that DOT’s failure to produce the witnesses deprived the deckhand “of the opportunity to challenge the reliability of the test and whether the procedures specified in the regulation were followed.”

The Appellate Division pointed out that an arbitration award may be vacated if it "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power," citing Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33. On the other hand, the court noted that “These exceptions are to be narrowly read in light of the strong federal and New York public policies favoring resolution of labor disputes by arbitration.”

The Appellate Division then concluded that none of these exceptions applied to the arbitration award in this instance. It said that the following test applied:

A public policy whose violation warrants vacatur of an arbitration award must entail "strong and well-defined policy considerations embodied in constitutional, statutory or common law [that] prohibit a particular matter from being decided or certain relief from being granted by an arbitrator," citing New York State Correctional Officers & Police Benevolent Assoc., 94 NY2d 321.

In contrast, said the court, policies that are merely "general considerations of supposed public interests" are not sufficient grounds for vacating an arbitrator’s award.

In this instance the Appellate Division ruled that the arbitration award did not violate a strong, well-defined public policy because DOT’s Zero Tolerance Policy for Positive Drug and Alcohol Test Results was not expressly embodied in constitutional, statutory or common law.

The “Zero Tolerance Policy” was adopted as DOT’s new internal policy shortly before the individual was tested.

The New York City Administrative Code § 12-307(b) — which provides generally that the City and other public employers have sole authority over all aspects of the work and discipline of their employees, and generally removes those areas from the scope of collective bargaining — does not embody a public policy violated by the award. since that provision also states that matter concerning “the practical impact that decisions have on terms and conditions of employment, including, but not limited to, questions of workload, staffing and employee safety, are within the scope of collective bargaining.”

Clearly, said the court, the zero tolerance drug policy is a disciplinary matter that has a "practical impact" on the "terms and conditions of employment, including, but not limited to, . . . employee safety." Accordingly, it is "within the scope of collective bargaining…." Thus, ruled the court, Local 333’s challenging the impact of the application of the policy on an individual in the negotiating unit is within the scope of the broad arbitration clause set out in the collective bargaining agreement.

Holding that the arbitrator’s decision was reasonable and justified by the evidence, or lack thereof, in the record, the Appellate Division decided that the arbitrator had not exceeded his powers.

The court said that the relevant collective bargaining agreement contained a broad arbitration clause covering disputes such as these. Accordingly, this allowed the arbitrator to provide or direct the relief or remedy he saw fit under the circumstances.

The full text of decision is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/search?q=Local+333

Quid pro quo sexual harassment

Quid pro quo sexual harassment

Pipkins v City of Temple Terrance [FL], CA11 267 F.3d 1197

In the Pipkins case the Eleventh Circuit Court of Appeals decided that harassment at the worksite as a result of a “failed consensual sexual relationship” did not support a quid pro quo sexual harassment claim filed pursuant to Title VII.

An employee alleged that she had suffered sexual harassment and retaliation within the meaning of Title VII and sued her employer, the City of Temple Terrace, Florida. A federal district court judge granted the city's motion for summary judgment and the employee appealed.

According to the decision,”[f]rom approximately June 1993 until May 1994, the employee maintained an on-again, off-again personal relationship with Daniel Klein, the City's Finance Director and Assistant City Manager. Klein was not the employee's immediate supervisor. After the employee and Klein ceased to have a sexual relationship the employee claimed that Klein continued to pursue her romantically....”

Initially given “exemplary job evaluations,” after October 1994 the employee's performance ratings began to suffer. She attributed this to the termination of her relationship with Klein and told the City's Human Relations Specialist of her concerns.

The employee alleged that in December 1994, the City Manager overheard a conversation between herself and Klein indicating the personal nature of their former relationship. After the City Manager completed an investigation, Klein was notified that he should immediately commence seeking alternate employment. Klein left the City's employ in June 1995.

The employee's job evaluations continued to deteriorate, scoring lower on her May 1995 evaluation than she had on previous ones, and worse yet on her October 1995 evaluation. As a result, The employee resigned effective January 2, 1996, approximately six months after Klein left the City's employ. She sued, claiming constructive discharge.

To establish prima facie case of quid pro quo sexual harassment, the employee was required to show: (1) that she belongs to a protected group; (2) that she has been subject to unwelcome sexual harassment; (3) that the harassment was based on her sex; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment; and (5) that there is a basis for holding the employer liable.

As to the issue of what constitutes sexual harassment at the work site, in Oncale v Sundowner Offshore Services, Inc., 523 U.S. 75, the Supreme Court said that “[t]he critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed”.

The Circuit Court said that based on Oncale, the employee did not meet the third factor -- she cannot establish that the harassment complained of was committed by reason of her sex.” Earlier rulings had distinguished between actions based on discriminatory animus and those based on personal animosity resulting from failed consensual relationships. In this case the court found that the consensual nature of the relationship between [the employee] and Klein and any resulting feelings of enmity determinative -- it was the result of personal animosity rather than any discriminatory animus.

Most of the actions of which the employee complained were committed by her immediate supervisor, Florence Lewis-Begin, rather than by Klein.

The employee contended, but offered no evidence, that Lewis-Begin was motivated by her friendship with Klein's wife to criticize her job performance. The court said that such motivation would be attributable to personal animosity and would not meet the Title VII requirement that the alteration of terms and conditions of employment be “because of... sex.”

The court, however, was quick to point out it was not deciding whether or not “once a consensual relationship between a supervisor and a subordinate is established, the subordinate could never then become victim to quid pro quo sexual harassment by that supervisor subsequent to the termination of the relationship.”

As to the employee's retaliation claim, the court found that her continuing negative evaluations were in response to well-documented job performance deficiencies. Although the employee claimed constructive discharge, her working conditions were not “so difficult ... that a reasonable person would have felt compelled to resign.”

As to repeatedly receiving poor evaluations, the court said that this would be unpleasant for anyone, but it does not rise to the level of such intolerable conditions that no reasonable person would remain on the job. The Circuit Court's conclusion: Viewing the facts in the light most favorable to [the employee], we agree with the district court's finding that harassment, if any, suffered by [the employee] was not the result of her gender, but rather in response to possible disappointment Klein may have experienced as a result of their failed relationship. We also agree that [the employee] has failed to establish a retaliation claim as a matter of law.

The lower court's dismissal of the employee's complaint was sustained.

Disclosing the unlisted telephone numbers called by public officials pursuant to a FOIL request

Disclosing the unlisted telephone numbers called by public officials pursuant to a FOIL request

Matter of Hawley v Village of Penn Yan, 35 A.D.3d 1270

This case arose when Robert Hawley submitted a Freedom of Information [FOIL] request to obtain a list of all of the telephone calls made and received by the Mayor of the Village of Penn Yan for a two-month period on a cellular telephone paid for the Village.

Responding to his request, the Village provided Hawley with the list of all of the mayor’s cell phone calls for the period requested but one. It did not provide that one telephone number because it was an “unlisted” number.

In the litigation that followed, the Appellate Division said that Supreme Court had “properly granted [Hawley’s] petition only in part, granting [Hawley] "the right to examine all requested telephone records, excluding unlisted wired and wireless numbers."

The general standard applied by the courts: "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government."

The basic concept underlying FOIL -- all public documents are available to the public. However, an agency may, but is not required to, deny public access to documents if such records or documents fall within one or more of the "exemptions from disclosure" allowed under FOIL. Unless access or disclosure is otherwise specifically prohibited by law, the basic rule is that only those records that fall within the statutory exceptions may be withheld from the public if the custodian of such records, as a matter of exercising discretion, elects to do so.

In addition, a public body may exercise its discretion and apply the exemption to disclosure where disclosure “would constitute an unwarranted invasion of personal privacy" (Public Officers Law §87[b]).

According to the decision, the question to be resolved in the context of this appeal was "What constitutes an unwarranted invasion of personal privacy as measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities?”

The Appellate Division said that this determination requires “balancing the competing interests of public access and individual privacy." In the court’s view, a situation in which a person chooses to have an unlisted phone number suggests that disclosure of the number would, in that individual’s view, be unnecessarily intrusive or result in an unwarranted invasion of personal privacy, citing NY Dept. of State Commission on Open Government, Advisory Opinions 9197 and 8740.

The court decided that in this instance FOIL did not require the disclosure of the unlisted telephone numbers Hawley asked to have revealed.

Resignation from a position in the public service must be in writing

Resignation from a position in the public service must be in writing

Plainedge UFSD v Raymond, Decisions of the Commissioner of Education 14644

The Commissioner's ruling in the Plainedge case points out the critical importance of the written resignation.

Early in 2001 Plainedge Union Free School District board member Donald Risucci announced that he was resigning from his position effective June 30, 2001. The district decided to include Risucci's “soon to be vacant” seat on the ballot of its annual school election in order to save the school district the approximately $7,000 that a special election would cost.

Ralph Raymond won the election for Risucci's seat and asked to be seated immediately. He was told that “the seat would not become vacant until June 30, 2001, the effective date of Risucci's resignation.

The school attorney had advised the superintendent that “Risucci's resignation did not meet legal standards and was a nullity.” Apparently Risucci had not submitted his resignation in writing as required by Section 31(2) of the Public Officer Law. An oral resignation does not satisfy the requirements of Section 31(2). Raymond, therefore, could not take office because no vacancy existed. In other words, Risucci was still a member of the board because he did not submit a lawful resignation. Raymond appealed his being denied a seat on the board to the Commissioner of Education.*

The Commissioner agreed that Risucci's March 8, 2001 announcement of his intention to resign at a board meeting did not constitute a valid resignation from the board. As the Attorney General indicated in a formal opinion [1971 Opinions of the Attorney General 12], a member of a school board, whether elected or appointed, is a public officer. Thus his or her resignation is subject to the mandates of Section 31 of the Public Officers Law. The Commissioner's decision notes that Section 31(2) requires that:

Every resignation shall be in writing addressed to the officer or body to whom it is made. If no effective date is specified in such resignation, it shall take effect upon delivery to or filing with the proper officer or body. If an effective date is specified in such resignation, it shall take effect upon the date specified, provided however, that in no event shall the effective date of such resignation be more than thirty days subsequent to the date of its delivery or filing.

It should be noted that Section 31(2) specifically addresses the “more than thirty day” situation -- i.e., what is the effective date of the written resignation if it specifies it is to take effect more than thirty days after its delivery?

Section 31(2) provides, in pertinent part, that if the written resignation specifies an effective date that is more than thirty days subsequent to the date of its delivery or filing the resignation shall take effect thirty days from the date of its delivery or filing.

In other word, had Risucci simultaneously submitted his written resignation at the time he orally announced his intention to resign indicating that the effective date of the written resignation was to be June 30, 2001, his resignation would have taken effect thirty days after his written resignation was delivered notwithstanding the fact that its terms demonstrated that Risucci intended that it not take effect until June 30, 2001. 

* The requirement that resignations be in writing also applies 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. 4 NYCRR 5.3, which applies to individuals subject to the Rules of the New York State Civil Service Commission, provides as follows: Resignation. (a) Resignation in writing. Except as otherwise provided herein, every resignation shall be in writing.

4 NYCRR 5.3 also provides that “If no effective date is specified in a resignation, it shall take effect upon delivery to or filing in the office of the appointing authority.” If an effective date is specified in a resignation, the Rule provides that it shall take effect on such specified date. However, if a resignation is submitted while the employee is on leave of absence without pay, such resignation, for the purpose of determining eligibility for reinstatement, shall be deemed to be effective as of the date of the commencement of such absence.”

Further, in the event an employee submits his or her resignation when charges of incompetency or misconduct have been or are about to be filed against the employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his or her termination shall be recorded as a dismissal rather than as a resignation.

Many local civil service commissions have adopted similar rules.

Eligibility for accidental disability retirement benefits as the result of an event that occurred while the individual was off-duty

Eligibility for accidental disability retirement benefits as the result of an event that occurred while the individual was  off-duty

DeBoer v Hynes, 287 AD2d 626

Gregory J. DeBoer was eligible for disability benefits resulting from work-related injuries pursuant to Section 207-c of the General Municipal Law. The question here: Are Section 207-c benefits available to an otherwise eligible individual if he or she is injured while off-duty?

DeBoer, was injured while attempting to make an off-duty arrest of individuals allegedly vandalizing his premises. He applied for Section 207-c disability benefits. Clearly, if he had suffered the injury while on duty, he would have been eligible for Section 207-c benefits.

Charles Hynes, the Kings County District Attorney, denied DeBoer's application for Section 207-c line-of-duty benefits because it resulted from DeBoer's actions while he was off-duty. The Appellate Division said that this was incorrect.

The court said that Hynes' Section 207-c decision should be annulled, “as the determination that the [DeBoer] did not sustain injuries in the performance of his duties was an improvident exercise of discretion.”

The court's conclusion: Under these circumstances, DeBoer was entitled to line-of-duty benefits pursuant to Section 207-c retroactive to February 21, 2000.

Representation by a layperson in an administrative disciplinary proceeding

Representation by a layperson in an administrative disciplinary proceeding

Sam v Metro-North Commuter Railroad, App. Div., 1st Dept., 287 AD2d 378

One of the issues in the Sam v Metro-North Commuter Railroad was Sam's contention that he was denied administrative due process because a non-attorney union official rather than an attorney served as his representative at a disciplinary hearing.*

Carlson Sam, an employee of Metro-North Commuter Railroad (Metro-North), was discharged from his employment for conduct unbecoming a Metro-North employee and failing to comply with a lawful order of a Metro-North police officer. The Special Board of Adjustment, which reviewed the disciplinary administrative tribunal's trial and determination, sustained Sam's being found guilty and the penalty imposed, dismissal.

The decision states that Sam was found guilty of leaving his assigned post and becoming involved in an altercation with a homeless man whom he though had stolen his car radio. The altercation, in which both plaintiff and the homeless man brandished weapons, spilled over into the terminal and into the track area of the station. Sam refused to obey the orders of Metro-North Police present during the incident, and Metro-North police officer Barreto had to physically removed the weapon from Sam's control and wrestle him to the ground and arrested him.

In reaching its decision, the Board noted multiple reasons justifying Sam's termination, including the fact that he left his assigned post, engaged in a violent altercation, refused a police officer's lawful order to lay down his weapon, and engaged in conduct requiring his forcible arrest. As to the penalty of dismissal, the Board found that termination was warranted since Sam, who only had three years of seniority, had already been disciplined several times previously.

Sam then sued Barreto and Metro-North asserting claims of assault, false arrest, false imprisonment, malicious prosecution, defamation, as well a claim that his 42 USC 1983 civil rights were violated.

As to Sam’s assertions concerning the lack of counsel, the Appellate Division agreed that he was not represented by an attorney at his administrative trial. However, said the court, “here the absence of counsel is not determinative since [Sam] was represented by a union official whose competence and experience were amply demonstrated by the trial record.”

The union representative “thoroughly questioned the various witnesses, raised appropriate objections, and requested a continuance to present additional witnesses, a request that was granted.” This, in the view of the court, provided Sam with appropriate representation for the purposes of satisfying administrative due process in a disciplinary setting.

* Section 75.2 of the Civil Service Law provides that an individual against whom disciplinary charges have been preferred may be represented by an attorney or by a representative of a recognized or certified collective bargaining organization.

Independent contractors and Title VII

Independent contractors and Title VII

Holtzman v The World Book Company Inc., USDC, EDPa.

It is not uncommon for a public employer to engage the services of an “independent contractor” to perform certain tasks.

In deciding the Title VII complaint filed Arlene Holtzman, a former employee of the World Book Company, Senior U.S. District Court Judge Lowell A. Reed Jr. ruled that Title VII protects workers who are “employees,” but does not apply to independent contractors.

According to the decision, Holtzman's position was “outsourced” by World Book and she became an “independent contractor” although she performed essentially the same duties she had performed as a World Book employee. This change in status, said Judge Reed, meant that Title VII no longer was applicable as Title VII only covers applicants for employment and employees.*

The court noted that in 1995 World Book reorganize its sales operations. As a result, it negotiated contracts with individuals designated “regional directors.” When Holtzman was told of the new arrangement, she approached Rosemarie Lee, a former World Book branch manager. Lee had formed her own corporation, Leer Services. Leer's sales force included a number of former World Book sales representatives. Holtzman signed a contract with Leer Services.

Was Holtzman an employee, and if so, whose employee? Judge Reed said that the U.S. Supreme Court set out a number of factors to be considered in determining whether or not an individual is an employee or an independent contractor in Nationwide Mutual Insurance Company v Darden, 503 US 318.

The Supreme Court's “common law test” for determining who qualifies as an “employee” in Darden lists the following factors to be considered in making the determination:

1. The hiring party's right to control the manner and means by which the work is accomplished.

2. The skill required;

3. The source of the supplies and tools used by the individual;

4. The location of the work;

5. The duration of the relationship between the parties;

6. Whether the hiring party has the right to assign additional duties or projects to the hired party;

7. The extent of the hired party's discretion over when and how long to work;

8. The method of payment;

9. The hired party's role in hiring and paying assistants;

10. Whether the work is part of the regular business of the hiring party;

11. Whether the hired party is in business;

12. Whether the hiring party provides employee benefits; and

13. The tax treatment of the hired party.”

Applying the Darden factors to Arlene Holtzman's position selling World Book's educational products, Reed found that her status had clearly changed in 1995 from employee to independent contractor and thus she was not able to maintain her Title VII action.

* Title VII defines the term “employee” as “an individual employed by an employer ....”

Investigation of an anonymous “phone tip” by the appointing authority

Investigation of an anonymous “phone tip” by the appointing authority

Matter of Civil Serv. Employees Assn., Inc., Local 1000, AFSCME, AFL-CIO v New York State Pub. Empl. Relations Bd., 35 A.D.3d 1005

One of the issues considered in resolving an appeal from PERB’s dismissal of an improper practice charge alleging retaliation for participation in “protected union activities” involved the employer’s investigation of an “anonymous tip” concerning an employee.

Frank Williams, a union local president, was employed at the State University of New York Purchase [SUNY]. A “vocal and active president, filing many grievances on behalf of union members,” Williams contended (1) his reassignment from the evening and weekend shift to a weekday shift and (2) SUNY’s investigation of the status of his driver's license after receiving an anonymous tip constitute improper practices within the meaning of the Taylor Law (Civil Service Law § 209-a [a], [c]). Williams contended that these acts were in retaliation for his participation in protected union activities.

Ultimately PERB dismissed the improper practice charge.

CSEA appealed and the Appellate Division said “Substantial evidence supports [PERB’s] finding that SUNY's reassignment of Williams was unrelated to his union activities, and was instead in furtherance of SUNY's operating needs”

As to SUNY's investigation of Williams' driver's license, when SUNY received an “anonymous phone tip that Williams did not have a valid driver's license,” it ran a search in a statewide database. The court said that it was reasonable for SUNY to verify that Williams was a licensed driver, as he drove his vehicle onto campus for each shift and employees in his department had access to state vehicles, even if he personally never drove one.

Affirming PERB’s dismissal of the improper practice charge, the Appellate Division noted that SUNY’s investigation revealed that Williams did not possess a New York driver's license but was licensed in Rhode Island, despite having lived in New York State for over 30 years.

As this decision demonstrates, anonymous allegation may pose a serious problem for the administrator. The allegations may be false, made as a result of malice or may simply be a mistake on the part of the accuser. Nevertheless, it is necessary for the administrator to assume the charges are valid and undertake an investigation of the matter.

Such an investigation probably need not be as intensive as would be the case were the allegations made by a supervisor in the normal course of business or by a known party. However, the administrator should satisfy himself or herself that there is no substance to the allegation. If the investigation reveals that there is some substance to the allegations, and if true would constitute misconduct, further action should be taken by the administrator.

Anonymous communications that allege improper conduct by an employee place the appointing authority on the horns of a dilemma. If the employer ignores the communication, it may later develop that there was some substance to the allegation, and the employer will be exposed to criticism (or liability) for failing to act “on the information.” On the other hand, if the appointing authority confronts the employee, relying solely on the information it received anonymously, it may be criticized for taking adverse action against the employee based on such information alone. Such was the situation that faced the appointing authority after it received an anonymous letter alleging that one it its firefighters, Scott Wilson, was using illegal drugs.

Wilson v City of White Plains, 95 NY2d 783, sets out the standard applied by the Court of Appeals when it considered the actions taken by White Plains based on its receiving anonymous information alleging Wilson was using illegal drugs.

White Plains ordered Wison to submit to blood and urine. Ultimately disciplinary charges were filed against Wilson. A hearing officer found Wilson guilty of six charges of misconduct. The Commissioner of Public Safety adopted the findings and recommendations of the hearing officer and dismissed Wilson from his position. Wilson appealed his termination and persuaded the Appellate Division that his removal was arbitrary. In annulling Wilson’s dismissal the Appellate Division said that “in directing [Wilson] to submit to blood and urine tests, the fire department officials “relied upon an unsubstantiated and anonymous letter” and that there “was no objective evidence which would have suggested that the [firefighter] was abusing alcohol or drugs.”

The Court of Appeals disagreed and reversed the Appellate Division’s determination.

According to the high court, in addition to its receiving an “anonymous letter” concerning Wilson’s alleged use of drugs, “the City presented evidence of Wilson’s physical manifestations of substance abuse the day he was tested, long record of excessive absences, prior substance abuse problems, reputation for showing up at work under the influence, as well as his understanding that he could be tested if he showed any signs of recurring substance abuse.”