Employee terminated for forging superior’s signature on an official document

Employee terminated for forging superior’s signature on an official document

Dep’t of Education v. Bermel (in PDF) -  OATH Index No. 1332/11

A custodian was charged with forging a principal’s signature on an annual operation plan for cleaning a City school. 

OATH Administrative Law Judge John Spooner found that testimony from the principal and from a Department official proved the forgery and that the custodian filed the plan without permitting the principal to review it. 

The NYC Chancellor of Education adopted Judge Spooner’s recommended that the individual be dismissed.

Proposed Respect for Marriage Act of 2011 introduced in Congress

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.

On Tuesday, July 19, 2011, the White House announced President Obama's support for repeal of the Defense of Marriage Act (DOMA).  The DOMA defines marriage for purposes of federal benefits, including FMLA leave, as a union between one man and one woman.  DOMA limited the availability of FMLA leave to care for a spouse to heterosexual marriages, thereby excluding same sex marriages and civil unions.  In February of this year the Obama administration announced that it would not longer defend the constitutionality of the DOMA. The recent announcement would repeal the DOMA altogether.

The repeal of the DOMA is contained in the Respect for Marriage Act of 2011, S. 598 and H.R. 1116.  The House and Senate bills are identical. Both would repeal the section of the DOMA defining marriage as the union of one man and one woman.  In its place, the legislation propose the following language:

For purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individuals marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State. 

The proposed legislation defines a "State" to include the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

Mr. Bosland Comments: If enacted, the Respect for Marriage Act would require covered employers to permit FMLA leave to care for a same sex spouse, provided that the marriage was legally recognized in the State where the marriage was entered.  The Respect for Marriage Act does not set a national standard stating that same sex marriages are valid for purposes of the FMLA.  Rather, the Respect for Marriage Act requires employers to look to State law to determine if a marriage is valid.  Currently, a few states recognize same sex marriage.  Many states outlaw same sex marriage.  Some states recognize same sex civil unions or domestic partners, but not same sex marriages.  Because they do not have the same status as marriage, the Respect for Marriage Act as currently written would not require employers to grant FMLA leave to an employee to care for a domestic partner or spouse in a civil union.   

Combined with the Full Faith and Credit Clause of the Constitution, the Respect for Marriage Act requires covered employers with operations in states that do not recognize same sex marriage to nevertheless recognize those marriages as valid for FMLA leave purposes if the marriage was valid in the state where the marriage was entered.  

For example, a same sex couple were legitimately married in New York, a State that recognizes same sex marriage.  The couple thereafter moves to Mississippi for a job opportunity.  Lets assume that Mississippi does not authorize same sex marriages.  All things being equal (e.g., company is covered by the FMLA, employee is eligible for leave, condition meets one or more serious health condition definitions, proper notice and certifications provided, etc.), if the employee of this same sex marriage requests FMLA leave to care for their spouse with a serious health condition, the employer could not deny the leave simply because Mississippi does not recognize same sex marriages.  Because the marriage arose in New York, where it was valid when entered, the couple are married for purposes of FMLA leave.  The Company would process the leave request as it would any other FMLA leave request by an employee to care for a spouse.

Passage of the legislation in the Democrat controlled Senate is likely, even with their thin majority.   During the run-up to the Presidential election, it will be interesting to see how the legislation fares in the Republican-controlled House.  The framing of the bill as something of a States-rights issue may peel some Republicans off their otherwise expected rejection of the proposed legislation.  The Obama Administration's support of the repeal of the DOMA will also require the Republican Presidential hopefuls to state their position, which may also result in a few surprises.

Stay tuned!     

Senate bill is posted on the Internet at:

http://thomas.loc.gov/cgi-bin/query/C?c112:./temp/~c1120x92ET

Concerning the Doctrine of Primary Jurisdiction

Concerning the Doctrine of Primary Jurisdiction

Donato v Plainview-Old Bethpage CSD, 286 AD2d 388

The Doctrine of Primary Jurisdiction was the underpinning of a decision by a State Supreme Court justice in the Donato case -- a case involving an educator's claim that she was eligible for reinstatement from a preferred list.

As the Appellate Division noted, the Doctrine of Primary Jurisdiction “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.”*

In other words, although the court has original jurisdiction, questions involving the exercise of an administrative body's special competence or expertise is to be referred to that body for an initial determination.

The doctrine of primary jurisdiction, the court explained, is intended to coordinate the relationship between courts and administrative agencies so that, among other things, the agency's views on factual and technical issues can be made available to the courts where the matter before the court concerns issues that are within the agency's specialized field.

According to the ruling, in 1991 Linda Donato's position at the District's Mattlin Middle School -- Social Studies Chairperson, Grades 5-8 -- was abolished for budgetary reasons. The district placed Donato's name on a preferred eligible list “for reappointment to a similar position” in accordance with Section 3013(3)(a) of the Education Law.

In 1997 the District created a new position -- District-wide Social Studies Chairperson, Grades K-12. Donato asked to be appointed to this new position from the Social Studies Chairperson, Grades 5-8, preferred list. The District, contending that the preferred list was not appropriate because the duties of the position, which it had abolished, were not similar to those of the new position, refused to use the preferred list to appoint Donato to the vacancy.

Donato, claiming that the two positions were, indeed, similar for the purposes of the certification of the preferred list, initiated an Article 78 action to compel the District to use the preferred list. If the preferred list were appropriate for filling the new position, the District would have to either appoint Donato to the new position or elect to keep it vacant.**

The Supreme Court dismissed the Donato's petition after concluding that the doctrine of primary jurisdiction was applicable. The court said that in this instance the Commissioner of Education should resolve the issue of whether or not the positions are similar for the purposes of certifying the preferred list.

The Appellate Division affirmed the lower court's ruling that the doctrine of primary jurisdiction applied in this case. Citing Hessney v Public Schools of Tarrytowns, 228 AD2d 954, the court pointed out that “the Commissioner of Education has the specialized knowledge and expertise to resolve the factual issue of whether [Donato's] former position and the new position are similar within the meaning of Education Law Section 3013(3)(a).”

Another procedural wrinkle to consider: A statute sometimes allows an individual to file his or her complaint or appeal either (a) with a court or (b) with an administrative body. Examples of such “election” of jurisdiction opportunities:

1. Section 76 of the Civil Service Law provides that an individual may file his or her appeal from a Section 75 disciplinary determination by an appointing authority initially with the civil service commission having jurisdiction within thirty days of the decision or with the court pursuant to Article 78 of the Civil Practice Law and Rules.

2. Section 297.9 of the Executive Law, New York's Human Rights Law, allows a human rights complaint to be initially filed with a court or with the State Division of Human Rights.

* Another doctrine frequently cited in cases challenging an administrative decision is the doctrine of the exhaustion of administrative remedies. In contrast to the doctrine of primary jurisdiction, the “exhaustion doctrine” involves satisfying a condition precedent to initiating litigation where there is an administrative appeal procedure in place. Typically courts will decline to assume jurisdiction if the complaining party has failed to exhaust his or her available administrative remedy.

** As a general rule, reinstatement from a preferred list does not require that the individual serve a probationary period in contrast to all other types of permanent appointment, which typically require that the individual satisfactorily complete a probationary period in order to attain tenure in the title.