Challenging a Section 75 disciplinary settlement agreement

Challenging a Section 75 disciplinary settlement agreement

Johnston v Triborough Bridge and Tunnel Auth., NYS Court of Appeals, 97 NY2d 627

Edward P. Johnston, an employee of the Triborough Bridge and Tunnel Authority [TBTA], was involved in an after-hours altercation during which his service revolver discharged. As a result, disciplinary charges were filed against him pursuant to Section 75 of the Civil Service Law.

On April 12, 1989, Johnston and the TBTA settled the disciplinary action and Johnston signed a “Waiver of Section 75 Hearing and Acceptance of Recommended Penalty.” The waiver included the following provisions:

1. Johnston agreed to waive his right to a disciplinary hearing pursuant to Civil Service Law Section 75 and his right to file an appeal pursuant to Civil Service Law Section 76;

2. Johnston agreed to serve a probationary period of 12 months “exclud[ing] all time during which he was not on duty;” and,

3. During this disciplinary probationary period, the TBTA, in its sole discretion, could dismiss him for any new violation of its rules or regulations.

Johnston, while serving his disciplinary probationary, was injured while on duty. As a result he was absent from work from August 19, 1989 until October 1996. In June 1997, following allegations that he had abandoned his post without authorization, TBTA dismissed Johnston without a hearing.

Johnston appealed his termination to the New York City Civil Service Commissioner, arguing that he was no longer on probation on the effective date of his dismissal. This, he contended, meant that was entitled to a hearing pursuant to Civil Service Law Section 75 before he could be terminated.

Johnston based his claim on the theory that his probationary period should be calculated in calendar days. TBTA, on the other hand, contended that the calculation should be based his workdays --only on the days Johnston actually worked, in this instance 253 days. Thus, TBTA argued, Johnston was still serving his disciplinary probation when he was dismissed.* 

As to Johnston's right to appeal to the City's Civil Service Commission, TBTA contended that the Commission lacked jurisdiction to hear the appeal because the settlement agreement specifically provided that Johnston waived his Section 76 rights of appeal.

The Commission agreed, dismissing Johnston's appeal on the ground that it did not have jurisdiction. The Appellate Division, however, sustained a lower court's ruling that “the Commission was bound to construe the 1989 agreement to ascertain whether the waiver therein remained effective at the time of petitioner's termination” [Johnston v TBTA, 278 AD2d 34-35]. The Court of Appeals reversed this holding.

The Court of Appeals held that Section 76 “solely authorizes the Commission to hear appeals from hearings in connection with disciplinary proceedings under section 75.” As there was no such proceeding in Johnston's case, the Commission had no jurisdiction to hear his application to review his discharge, which was not effected under Section 75.

The Court also commented that Section 76(2) limits the Commission's review to the record and transcript of the disciplinary hearing. As there was no record or transcript in this instance, the Commission had no jurisdiction to determine the matter.

In contrast, the Court of Appeals noted that Johnston “could have brought an Article 78 proceeding at the time of his dismissal in June 1997 challenging the TBTA's conclusion that he was a probationary employee” [emphasis supplied], which he failed to do. Accordingly, the Court held that Johnston “cannot reassert his contentions by appealing to the Commission because its jurisdiction is explicitly limited to appeals of Section 75 determinations.

* Typically probationary periods are automatically extended for a term equal in length to the probationer's absence during his or her probationary period. In many jurisdictions the rules allow the appointing authority, at its discretion, to deem part or all of such absence[s] “time served” as a probationer. One notable exception: a probationer who is called to active military duty is deemed to have satisfactorily served in his or her probationary period while on military leave if he or she is honorably released from military service and is subsequently timely reinstated from such leave.

Constructive termination

Constructive termination

Duffy v Paper Magic Group, Inc., CA3, 265 F.3d 163

It is not enough to that the individual feel stressed or frustrated by his or her job situation to claim constructive discharge. The individual must show the existence of a pattern of “intolerable conduct” to support such a claim.

Bernadine Duffy complained that she was constructively discharged as a result of a continuing pattern of discrimination by Paper Magic. Among the examples of treatment she contended resulted in her constructive discharge were the following:

1. She was “passed over” for a promotion;

2. Her supervisor “bent over backwards” to make another, younger, employee's “life easier.”

3. She worked overtime hours, but unlike other salaried employees, did not receive overtime pay.

4. She was one of two supervisors excluded from a company meeting and from a training seminar for supervisors.

5. Supervisors made derogatory remarks about her age.

Duffy said that she complained about such conduct to her employer but nothing changed. As a result of these working conditions Duffy said that her health deteriorated, requiring her to seek treatment by a physician. Duffy resigned from her position and filed charges of unlawful discrimination with the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission.

In the litigation that followed, the District Court concluded that Duffy failed to demonstrate that she was constructively discharged or otherwise suffered an adverse employment action within the meaning of the Age Discrimination in Employment Act [ADEA] and entered summary judgment in favor of Paper Magic.

The Circuit Court sustained the lower court's action, rejecting Duffy claim that she was constructively discharged because she experienced a “continuous pattern of discriminatory treatment” at Paper Magic.

It appears that Duffy's testimony focused almost entirely on her subjective view that Paper Magic constructively discharged her but she failed to establish any of the situations set out by the Third Circuit in Clowes v Allegheny Valley Hospital, 991 F.2d 1159, suggesting constructive discharge.

Elements that could support a finding of constructive discharge include the employer's threats to fire an employee, encouraging the employee to resign, or involuntarily transferred an individual to a less desirable position.

Among other actions that could support a claim of constructive discharge - the employer is aware that the employee has been subjected to a continuous pattern of harassment and the employer does nothing to stop it.

The court cited Aman v Cort Furniture Rental Corp., 85 F.3d 1074, to illustrate the course of conduct that could be deemed constructive discharge. In Amen the court said that continuously subjecting a black worker to racially-based insults; admonitions “not to touch or steal anything”; being forced to do menial tasks not assigned to white employees; subjecting the individual to actions by co-workers withholding information and stealing documents needed to perform the job; and the employer's threats to “get rid of [the employee].”

These elements were not present in Duffy's case. Her department was understaffed. But management's deliberate delay in providing needed assistance, thereby making her job more difficult, did not make her job impossible. It simply required her to work longer hours until help arrived, making her job more stressful, but not unbearable. In the words of the court, “employees are not guaranteed stress-free environments and discrimination laws cannot be transformed into a palliative for every workplace grievance, real or imagined, by the simple expedient of quitting.”

The Circuit Court also ruled that Duffy's attempt to use her physician's opinion that her job had an adverse affect upon her health to bolster her claim that her working conditions were intolerable also fails. These health problems support an inference that Duffy's environment was stressful. Again, leaving a stressful environment does not amount to constructive discharge.

Duffy's own explanation as to why she resigned, said that her decision was based, in part, on her son's recent graduation from college and her resultant financial ability to leave. This, said court, “supports our conclusion that [Duffy] was not constructively discharged.”

The Circuit Court decided that Duffy had not produce evidence from which a reasonable jury could find an adverse employment action -- a prerequisite to a successful age discrimination claim -- and affirmed the District Court's summary judgment.

Disqualifying applicants for a particular job

Disqualifying applicants for a particular job

EEOC v Woodbridge Corp., CA8, 263 F.3d 812

Mathews v The Denver Post, CA10, 2001 WL 967797

The Woodbridge and Mathews cases concern similar issues: disqualifying an individual with a disability for a particular job or assignment.

The Woodbridge case asks: Does the employer violate the ADA if it rejects an applicant a particular job because test reveal that he or she is susceptible to certain types of injuries?

The Mathews case asks: Does the employer violate the ADA if it rejects an employee with epilepsy for a job because an essential function of the job requires the operation of heavy machinery?

The Woodbridge Case

The Equal Employment Opportunity Commission sued the Woodbridge Corporation, contending that it violated the ADA when it excluded nineteen applicants for jobs on one of its manufacturing lines because of test results that indicate those applicants may be susceptible to sustaining injuries from repetitive motion.

The Circuit Court affirmed a district court's determination that the ADA was not violated as such individuals were not “disabled” within the meaning of the ADA.

EEOC alleged that Woodbridge unlawfully discriminated against individuals rejected because they were determined to be more likely than others to develop carpal tunnel syndrome.

The company, a producer of polyurethane foam pads used in automobile seats, based its decisions rejecting these applicants on the basis of results of a test designed to reflect abnormal wrist neurometric readings in connection with repetitive wrist motions that its workers on a specific manufacturing foam line would experience.*

Applicants with abnormal neurometry readings were not hired for these foam line production positions although they were considered to be eligible for jobs in other areas within the Woodbridge's plant. EEOC, however, contended that Woodbridge discriminated against the rejected applicants on the basis of “a perceived disability, as Woodbridge regarded the applicants as substantially limited in the ability to work.”

The Circuit Court said that the ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Major life activities include caring for one's self, performing manual tasks, walking, seeing, hearing, breathing, learning and working.**

According to the ruling, an impairment is “substantially limiting” if it renders an individual unable to perform a major life activity that the average person in the general population can perform, or if it significantly restricts the condition, manner, or duration under which an individual can perform a particular major life activity as compared to an average person in the general population. Such a determination is to be made on a case-by-case basis.

The district court held that the “only documented perception of the [rejected] applicants is that they were not physically qualified to perform the unique requirements of [specific] Woodbridge manufacturing positions. This perception does not prevent the applicants from obtaining employment in a broad class of jobs.”

In contrast, a person is deemed to be substantially limited with respect to working if he or she is “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.”

In making such a determination, the court considers such factors as the number and type of jobs from which the impaired individual is disqualified; the geographical area to which the individual has reasonable access; and the individual's job training, experience, and expectations.

As the purpose of the ADA is to prevent “substantial personal hardship in the form of significant reduction in a person's real work opportunities,” the court must ask if a person's particular impairment constitutes a significant barrier to employment in a class of jobs or a broad range of jobs.

The issue here was whether the nineteen applicants were regarded as “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skill, and abilities.”

According to the decision, “the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”

What is required to prevail? Proof that the individual's overall employment opportunities are limited rather than being viewed as unqualified for a particular job or assignment. In other words, it is necessary to show that the individual is precluded from being selected for more than one type of job. Being disqualified for but a single, specialized job or a particular job of choice does not satisfy this requirement.

In the words of the Circuit Court: If jobs utilizing an individual's skills are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.

Finding that the nineteen applicants represented by EEOC were not precluded from employment in more than one type of specialized job, the Circuit Court sustained the lower court's granting summary judgment dismissing EEOC's complaint.

The Mathews Case

In Mathews, the U.S. Circuit Court of Appeals, Tenth Circuit, ruled that an employee with epilepsy is not qualified for a job as a journey-level mailer at a newspaper because an essential function of his job requires his operating heavy machinery.

John Mathews sued his former employer, the Denver Post, claiming that it had laid him off in violation of the Americans with Disabilities Act. The district court granted summary judgment to the Post, holding that Mathews had not shown he was a disabled person within the meaning of the Act, nor had he shown he was qualified to do his job during the period November 1994 to May 1996.***

The Circuit Court affirmed the lower court's determination.

Mathews, who started working for the Post in 1983, was promoted to journeyman level mailer in 1988, and is currently employed by the Post. Mathews suffers from epilepsy, including grand mal seizures. He suffered a grand mal seizure on September 6, 1994 and was hospitalization for two days. His doctor told him not to return to work for one month.

Based on the information received from Mathews' personal physician, Dr. Jack Sylman, in a letter dated October 8, 1994, the Post terminated Mathews on the grounds that his medical restrictions prevented him from performing the essential functions of his job. At the same time the Post attempted to assist Mathews by looking for a position at the newspaper that he could perform without offending his medical restrictions.

Dr. Sylman stated that Mathews did have an epileptic seizure and “I would not be comfortable with him either driving, or being near or operating heavy equipment for at least three months. This is a fairly standard guideline generally accepted within the community.” Dr. Sylman also told the Post that Mathews has epilepsy and has had isolated grand mal seizures, some of which have occurred at work. He also said that: Unfortunately there is no cure for this condition though reasonable control has been achieved with Dilantin. However, I cannot assure him that he might not have isolated sporadic seizures without warning. Ideally, it would be best if he were not to drive or work around heavy machinery.

Mathews sought to return to work, suggesting that the Post accommodate him by letting him do the part of the journey-level mailer job that did not involve working with machines. The Post rejected the proposal. On May 9, 1996, Mathews's doctor lifted his medical restrictions, stating that he “should be able to drive or work with machinery.” The Post then rehired Mathews back at his old job.

Mathews sued the Post, claiming that the Post discharged him in violation of the ADA, failed to provide a reasonable accommodation for his disability, and fired him in retaliation for filing a complaint with the EEOC.

The district court held that Mathews had not shown that he was disabled within the meaning of the ADA. Although Mathews argued that his epilepsy substantially limited him in the major life activity of working, the court decided that he was only able to show that his epilepsy interfered with his ability to do particular jobs. To prevail in his ADA action, Mathews was required to show that he was unable to do a class of jobs or a broad range of jobs in order to establish that there was a substantial limitation on his ability to work.

Further, said the court, Mathews had not shown he was a qualified individual, because he could not perform the journey-level mailer's job while he was under doctor's orders not to work with or around dangerous machinery.

Mathews appealed. The Circuit Court dismissed the appeal, concluding that the district court had ruled correctly on the qualification issue and thus it was unnecessary to address the question of whether Mathews was disabled.

* The test used by Woodbridge for this evaluation was discontinue as the company had concerns as to its reliability.

** In Sutton v United Air Lines, Inc., 527 US 471, the Supreme Court suggested, but did not specifically hold, that working was a major life activity

*** Relying on Mathews' physician's statement, the Post did not allow Mathews to work during this period.

Civil deputy sheriff should not have to wait to be harmed before being given weapon and firearms training

Civil deputy sheriff should not have to wait to be harmed before being given weapon and firearms training

Mtr. of Monroe County Deputy Sheriffs Assoc.; Arbitration Award, PERB Case A200-439

Monroe County and the Monroe County Deputy Sheriffs Association submitted the following issue to PERB Arbitrator James A. Gross: Whether the Monroe County Sheriff's Office created an unusual work condition by failing to provide firearms and proper training in connection with firearms for the Civil Bureau.

Holding that the Sheriff's Office did, in fact, create an unusual work condition by failing to provide civil deputy sheriffs with firearms and training, Arbitrator Gross directed that Monroe County “provide firearms to civil deputies when they perform their duties.”

The parties apparently conceded that the grievance, as presented to the arbitrator, was subject to the contract grievance procedure pursuant to Article 36.2.1. of the collective bargaining agreement. Article 36.2.1 set out the definition of a grievance and provides as follows:

A grievance shall be defined as any claimed violation of a specific provision of this agreement, or any matter that relates to employee health and safety.

The County argued that “the issuance of weapons does not comply with the duties and functions of non-criminal civil deputies position [sic]” and that its civil deputies are not performing police functions. The County also maintained that there was no evidence that any civil deputy had been injured performing his or her duties “for at least 30 years” as a result of his or her performing civil deputy sheriff duties.

The Association contended that the civil deputies should carry a weapon because they are perceived to be law enforcement personnel and displayed badges. According to the Association:

1. A badge is recognized as a police presence; and

2. Any person identified as a law enforcement officer is automatically in a high-risk situation either by becoming a target for hostility or by being drawn into hostile and dangerous situations involving others.

Arbitrator Gross ruled that the County violated Article 36.2.1 by failing to provide firearms to its civil deputy sheriffs. 

After considering the testimony of witnesses, the arbitrator's concluded that:It would be irresponsible to deny these Civil Deputies the equipment they need to meet the greatest threats to their safety simply because no Civil Deputy in Monroe County has been killed or seriously injured in the performance of their duties - as has happened elsewhere in New York State. No person should have to wait to be harmed before being given adequate protection.