ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

July 28, 2011

COBRA notifications must be sent to eligible individuals by employer


COBRA notifications must be sent to eligible individuals by employer
Phillips v Saratoga Harness Racing Inc., USDC, NDNY, 240 F.3d 174

U.S. District Judge Lawrence E. Kahn ruled that the employer did not satisfy the Consolidated Omnibus Budget Reconciliation Act of 1985's [COBRA] notification requirements when it relied on its employee, Frank Studenroth, to give his former spouse information concerning her rights under COBRA to continue her health insurance.

In 1994 Studenroth, without his wife's knowledge, obtained an ex parte divorce in the Dominican Republic. He told Saratoga to discontinue his group health insurance plan coverage for his former spouse as a covered dependent and to substitute his newly married spouse as his dependent.

Saratoga Harness gave Studenroth the necessary information advising his former spouse of her right to maintain her health coverage under COBRA. According to Judge Kahn, although Studenroth promised Saratoga that he would have the documents delivered to his former spouse, she did not get these materials. She first learned that she no longer had health insurance coverage when her claims for health insurance benefits were rejected for “lack of coverage.”

Judge Kahn said Saratoga was incorrect when it relied on an employee to transmit COBRA information to an estranged spouse. It is the employer's duty to supply such information and it cannot escape this responsibility by relying on its employee's agreement to give the necessary information to a former spouse.

Judge Kahn said that:

While some married couples are able to dissolve their marriages amicably, it is well known that separations and divorces often turn once-loving spouses into bitter enemies. As such, it is unreasonable to depend on a health care plan beneficiary's former spouse to deliver a COBRA notice to the beneficiary. The very nature of divorce itself forecloses this avenue as a reasonable attempt to comply with the notification requirements.

Judge Kahn held Saratoga liable for the medical expenses incurred by the former Mrs. Studenroth.

The lesson here is that an employer must assure itself that the party who is to be advised of his or her COBRA rights must actually receive such information in a timely manner. The best way to do this is for the employer to provide the information directly rather than to rely on a third party to deliver the information on its behalf. In addition, it would be prudent to obtain proof that the individual actually received the information and the date on which that event took place in order to be able to demonstrate it compliance with COBRA's requirements.

A petition seeking the removal a school official requires specific wording


A petition seeking the removal a school official requires specific wording
Decisions of the Commissioner of Education #14,608

Michelle Knapp filed an appeal with the Commissioner of Education seeking to have the Commissioner remove Freeport Union Free School District Board Member Sunday F. Coward. Her appeal was rejected because she failed to comply with the procedural requirements set out in the Commissioner's Regulations.

Knapp charged that Coward had “violated board policies” and had “threatened her and made racist remarks to her following a board meeting on March 28, 2001.” The Commissioner said that he was compelled to dismiss Knapp's appeal because she had failed to serve Coward with a copy of her petition. The decision notes that with respect to "an application to remove a school officer pursuant to Education Law Section 306, Commissioner's Regulation Section 277.1(b) requires that the notice of petition must specifically advise the [school official] that the application is being made for [his or her] removal from office."

It appears that Knapp used the notice prescribed by Section 275.11(a) for appeals brought pursuant to Education Law Section 310. The Commissioner said that “[a] notice of petition which fails to contain the language required by the Commissioner's Regulations is fatally defective and does not secure jurisdiction over the intended respondent,” citing Appeal of Khalid, Commissioner's decision 14,570).

The reason for this, explained the Commissioner, is that it is “the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with Section 277.1(b) necessarily results in a jurisdictional failure and requires dismissal” of the appeal.

Employee terminated for failure to “call-in” and physical confrontations with co-workers


Employee terminated for failure to “call-in” and physical confrontations with co-workers
Kampel v Westchester County Health Care, Corp., 286 AD2d 390

Robert Kampel, was served with disciplinary charges alleging excessive absences, failure to comply with the established call-in procedure to report his absences, and two incidents in which he pushed co-workers. Found guilty, Kampel was terminated from his position.

Finding that the disciplinary determination was supported by substantial evidence, the Appellate Division, citing the Pell standard, Pell v Board of Education, 34 NY2d 222, sustained the penalty imposed. The court said that dismissal was not so disproportionate to the offenses for which Kampel had been found guilty as to be “shocking to one's sense of fairness.”

Independent contractors and Title VII

Independent contractors and Title VII
Holtzman v The World Book Company Inc., USDC, EDPa.- 2001 WL 936492

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 ....”

July 27, 2011

Appointing authority threatening to do what it has a legal right to do is not “coercion”

Appointing authority threatening to do what it has a legal right to do is not “coercion”
Rychlick v Coughlin, 63 NY2d 643

Suppose an employee entitled to pre-termination “notice and hearing” is told that unless he or she immediately resigns from his or her position, he or she will be served with disciplinary charges. Does such a demand constitute unlawful coercion? This issue was considered by the New York State Court of Appeals in Rychlick.

Rychlick, a State corrections officer, was told that unless he immediately submitted his resignation, formal disciplinary charges would be filed against him. He submitted his resignation. A few days later he asked to withdraw the resignation on the grounds that it had been “forced” from him. When his request was denied, Rychlick sued, claiming the resignation had been obtained under duress and thus was void.

The Court of Appeals upheld the appointing authority's refusal to allow Rychlick to withdraw his resignation, ruling that threatening to do what one had the legal right to do -- file disciplinary charges against an employee -- does not constitute unlawful duress.

Anatomy of a hearing officer's disciplinary findings and recommendation


Anatomy of a hearing officer's disciplinary findings and recommendation
Averill Park CSD v Craig Landin, Decision of Hearing Officer Howard A. Rubenstein, Esq.

The analysis of the record by the hearing officer in considering Section 75 disciplinary charges filed by the Averill Park Central School District against school custodian Craig Landin provides examples of several important issues that a hearing officer may be required to consider and rule upon in the course of formulating his or her findings and recommendations.

In the course of formulating his findings and recommendations, Section 75 Hearing Officer Howard A. Rubenstein sets out his reasoning in (1) determining the credibility of witnesses and (2) holding that certain of the charges filed against Landin did not constituted “double jeopardy.”

Landin was served with a number of charges and specifications alleging misconduct and incompetence. One charge alleged that Landin falsified his time records by reported he had worked overtime when he “in fact ... did not work at least part of those hours” claimed. Other charges included allegations that Landin failed to perform, or assign a subordinate to perform, certain duties when he was directed to do so and neglected to open the building as scheduled on Election Day, November 7, 2000.

As to the charge alleging that Landin falsified his time records, on Tuesday, June 13, 2001, Landin completed and signed the time sheet indicating that he had worked overtime from 9:00 a.m. to 4:30 p.m. on Saturday June 9, 2001.

There was a problem with this statement, however. The testimony of Landin's supervisor, Henry Altenweg, was that he had observed Landin working “in his yard” as he drove by Landin's home about 10 a.m. on June 9 on his way out of town. Further, Dr. Wayne Johnston, the school principal, testified that he entered the building at approximately 9:15 a.m. on June 9, 2001 and had to turn off the alarm system when he arrived. Dr. Johnston explained that if anyone had been present in the building when he arrived, the alarm either would have been set off by the earlier visitor or would have had to have been turned off by the earlier visitor.*

Landin then explained that he did not work on June 9, attributing his claim to have worked on that date to “forgetfulness,” and made the affirmative defense that he had “accepted the offered overtime and completed the assignment on Sunday, June 10, 2001 between the approximate hours of 9 a.m. and 5 p.m.”

The problem with this defense was that Altenweg also testified that he drove by Landin's home about 1:00 p.m. on Sunday, June 10 while returning from out of town and again observed him working in his yard.

Essentially Landin testified that he worked either on the 9th or the 10th, or maybe on both days, but he just could not remember when he worked. However, when asked “[d]o you remember when you got to work?, he responded “[a]t 8:55 a.m.” because “ [w]hen I pulled up to the building -- my clock is right in my dashboard, smack dab in the middle. And just before I shut it off, I looked at the time to make sure I wasn't late, and it said 8:55.”

Sarah O'Hearn and Phyllis Kapelewski, witnesses called to testify by Landin, could not recall seeing him at work on either June 9 or June 10 or whether the tasks they asked to perform were actually done on that Saturday or that Sunday.

As to the reaction of the hearing officer to Landin's testimony concerning when he reported for work, Rubenstein commented that Landin just tells a different story every time he is asked when he actually worked. “Landin's explanation that his loss of memory as to which day he performed the overtime was due to illness apparently was the result of a case of date specific amnesia, but not time specific amnesia, since although he could clearly recall that he had reported for work at 8:55 a.m. and left work at 4:30 p.m, he could not recall on which day he had worked ... I reject Landin's testimony as to when and how many hours he may have worked overtime on the June 9th weekend as entirely unworthy of belief.”

In contrast, Rubenstein said that the testimony of Altenweg that he saw Landin at his home on June 9th at approximately 10:00 a.m. and on June 10th at approximately 1:00 p.m. was clear and convincing and stands essentially unchallenged in the record. He noted that Landin never specifically denied that he was at his home at 10 a.m. on Saturday June 9th and at 1 p.m. on Sunday June 10th.

In addition, said Rubenstein, Dr. Johnston's testimony that when he arrived at School on Saturday June 10th, the alarm system was still on and therefore Landin could not have been there at that time also stands unchallenged.


The bottom line: Rubenstein concluded that “Landin lied when he reported the date and time he worked overtime to Altenweg and is thus guilty of charge 1....”

Charge 2 consisted of five specific instances in which it was alleged that Landin failed to adequately clean, or to ensure that one of his subordinates adequately cleaned, various areas within the school building. The hearing officer found Landin guilty of all specifications.

In his post hearing brief, Landin argued that his failure to clean areas identified in the charge do not justify disciplining him given the fact that he had a significant amount of extra work to perform and, in any event, “is such a minor matter that it does not warrant the imposition of any penalty.” The hearing officer said that this argument goes to the nature of the penalty to be imposed rather than whether Landin was guilty as charged.

Landin also argued that he received a memorandum concerning his failure to remove certain materials from the building on January 3, 2001, and that such a memorandum constituted discipline and that he could not be charged with the same misconduct twice.

Rubenstein rejected this argument, noting that in this instance the counseling memo constituted proper supervisory conduct rather than an impermissible disciplinary action. In the words of the hearing officer:

As the Court of Appeals indicated in Holt v Webutick Central School District, 52 NY2d 625, a “counseling memorandum” that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.

In other words, comments critical of employee performance do not, without more, constitute disciplinary action. Typically the “more” is the imposition of some form of penalty. Coupling a “counseling memorandum” with some form of an adverse personnel action would be viewed as a subterfuge for initiating required disciplinary action.

In some instances it may be difficult to determine the location of that thin line that separates lawful “constructive criticism” of an individual's performance by a supervisor and supervisory actions addressing an individual's performance that are disciplinary in nature. Here, said Rubenstein, that thin line is easy to distinguish.

Why? Because “[t]he memo was clearly a lawful means of instructing Landin concerning unacceptable performance and the actions that he should take to improve his work. No disciplinary characteristics attach to the memo, nor does it contain any disciplinary action or threat or promise of detrimental action.”

Rubenstein also pointed out that in Patterson v Smith, 53 NY2d 98, the Court of Appeals ruled that including charges concerning an employee's performance that were previously addressed in a counseling memorandum does not constitute double jeopardy. The court commented that while a proper counseling memoranda may contain a warning and an admonition to comply with the expectations of the employer, it is not a form of punishment in and of itself.

As to Charge 3, Landin's alleged failure to open the building on Election Day, a task that he had done on earlier occasions, the hearing officer decided that Landin's failure to open the building or to ask if he should open the building “is inexcusable and constitutes misconduct or incompetence.”

In view of his findings that Landin was guilty of all charges and specifications, Rubenstein recommended that Landin be dismissed from his position. The school board adopted the hearing officer's findings and recommendation and dismissed Landin from his position.

Another procedural matter: Rubenstein placed the appointing authority's letter designating him to serve as the hearing officer in the record. Why did he elect to do this? To demonstrate his authority to conduct the hearing. The courts have ruled that the failure to designate the disciplinary hearing officer in writing is a fatal procedural defect requiring any resulting disciplinary action to be vacated.

* Dr. Johnston also testified that he reset the alarm when he left at approximately 10:00 a.m. The alarm “did not beep,” indicating that no one was present in the building when the alarm was reactivated.

Light duty assignments involving law enforcement personnel


Light duty assignments involving law enforcement personnel
Cripe v City of San Jose, CA9, 99-15253

The Cripe's case considers the mandates of the Americans With Disabilities Act [ADA] in terms of the obligations of a law enforcement agency to keep disabled police officers in the “main stream” for the purposes of making assignments consistent with the needs of the agency and the abilities of the disabled officer.

The San Jose [California] Police Department has more than 1,300 sworn officers. Officers were assigned to one of three types of positions: beat-patrol assignments; modified-duty assignments -- positions specifically set aside for disabled officers; and specialized assignments. Specialized assignments consist of all sworn officer assignments other than beat-patrol and modified-duty assignments.*About one half of the force work in “beat assignments.”

Six City of San Jose police officers with neck and back injuries that prevented them from serving as patrol officers sued the Department alleging that the Department placed them in “a small number of undesirable positions” and did not consider them for “special assignment” posts. This Department policy, they alleged, violated the ADA.

The Department's response: “public safety would be compromised if officers with physical limitations that prevented them from forcibly arresting suspects were permitted to perform more than the prescribed handful of modified duty jobs that had been made available to them.” According to the Department, the six officers did not qualify as “disabled” within the meaning of the ADA because:

1. They cannot perform the “essential functions” of the positions they seek because they could not effect a forcible arrest or subdue a fleeing suspect;

2. It would impose an “undue hardship” on the City to require it to accommodate the plaintiffs by waiving the disputed policies; and

3. The modified-duty assignment policy is a reasonable accommodation satisfying the ADA's mandate.

The Circuit Court disagreed, holding that the Department's policy violated the ADA. The court said that “relegating [the disabled officers] to unsatisfactory jobs in which they have little or no possibility for promotion simply cannot be reconciled with the ADA's 'clear and comprehensive national mandate' to eliminat[e] ... discrimination against individuals with disabilities.”

The Circuit Court decided that the ADA requires the employer to find ways to bring the disabled into its ranks, even when doing so imposes some costs and burdens. The San Jose Police Department, said the court, must participate in this process, as long as it can do so in a manner that will not compromise public safety.

The crux of the matter: was making a forcible arrests and subduing fleeing suspects an “essential function” of all specialized-assignment positions in the San Jose Police Department. According to the ruling, “an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function.” The Circuit Court concluded that a requirement that officers be physically capable of making forcible arrests does not reflect an essential function for all specialized assignment police officers.

In other words, the court ruled that the disabled officers were qualified individuals with a disability who, with or without reasonable accommodation, can perform the essential functions of the position that such individuals hold or desire, including, presumably, certain “special assignment.”

As examples, the decision notes that the disabled officers presumably would make good background investigators, good internal affairs investigators, and good recruiters or training officers, assignments that do not typically involve making forcible arrests or subduing fleeing suspects.

The bottom line: the Circuit Court ruled that there is a factual dispute as to whether the ability to make a forcible arrest is an essential function of all the specialized-assignment positions that the disabled officer seek the opportunity to fill, notwithstanding the job descriptions that the Department has prepared. In the words of the court:

We conclude that the [disabled officers] are not categorically unable to perform the essential functions of the “specialized assignments” they seek, even though they may be unable to make forcible arrests and subdue suspects. They are, rather, for purposes of this appeal, “qualified individual[s] with ... disabilit[ies].”

In another light duty case, Champ v Baltimore County, Md., [95-2061], the U.S. Circuit Court of Appeals, Fourth Circuit, ruled that a Baltimore County police officer who lost 100% of the use of his left arm was not entitled to a permanent light-duty assignment.

Significantly, the department defined the essential duties of a police officer as including the ability to make a forcible arrest, drive vehicles during an emergency and correctly aim a firearm while using two hands. Officer James Champ, who was severely injured in an off-duty motorcycle accident, could not show that he could perform any of these tasks.

In this unpublished decision, Judges Donald Russell, Sam Ervin III and William Wilkins Jr. said the ADA was not violated when the county placed Champ on disability retirement because he was not able to demonstrate he could perform the essential functions of the job of police officer, with or without reasonable accommodation.

In Stone v City of Mount Vernon, CA2, 96-7976, decided June 30. 1997, the U.S. Circuit Court of Appeals observed that the proper way to analyze the merits of a claim under the federal disability statutes is to focus on the fundamental job duties of the specific position an individual with a disability desires, rather than on the title .

* Specialized assignments are viewed as very desirable by department personnel. In consideration of this, the Department and San Jose Peace Officers Association negotiated an elaborate procedure for selecting personnel for these preferred jobs.

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