Irresistible impulse as a defense in a disciplinary action

Irresistible impulse as a defense in a disciplinary action

Perry v Comm. of Labor, 283 AD2d 754

Readers may recall that in the 1959 movie Anatomy of a Murder actor James Stewart successfully defended an individual indicted for murder on the theory his client's actions were the product of an “irresistible impulse.”

Unemployment insurance claimant John K. Perry was not as successful with this theory in challenging a determination by the Unemployment Insurance Appeals Board denying him benefits after finding that his employment was terminated due to his misconduct.

The nature of Perry's alleged misconduct: his misuse of his employer's computer equipment.

Perry, a human resource specialist, was terminated after his employer discovered that he used his computer terminal to frequently access pornographic websites during working hours.

Perry's defense: his behavior was nonvolitional given his “impulse control disorder”. He produced a letter from his psychologist indicating that he suffered from posttraumatic stress disorder displayed in the form of obsessive behavior such as accessing pornographic websites. However, said the court, the evidence failed to establish that Perry was unable to control this impulse while working.

The Appellate Division's conclusion:

Since Perry disregarded his employer's policy against accessing inappropriate websites at work, substantial evidence supports the Board's decision that Perry lost his employment due to disqualifying misconduct.

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.