Section 207-c line of duty disability not available for disability resulting from an “off-duty” injury

Section 207-c line of duty disability not available for disability resulting from an “off-duty” injury

Wynne v Town of Ramapo, 286 A.D.2d 338

Contending that he was injured in the line of duty, Town of Ramapo police officer William Wynne applied for disability benefits pursuant to Section 207-c of the General Municipal Law. Section 207-c provides certain benefits, including the continuation of their full salary, to law enforcement personnel absent from work because of a disability incurred while performing their official duties.

Wynne conceded that he had injured his hand while off-duty and on vacation. Wynne said that he was driving through a nearby town at the time. Stopped by a resident who knew he was a police officer, he was asked to rescue an infant that accidentally locked himself in the car.

Unable to secure the assistance of the local police, Wynne called the Town of Ramapo police dispatcher. The dispatcher, after speaking with a supervisor, advised Wynne there were no Ramapo patrol cars available and that he was not authorized to break the car window.

Notwithstanding this instruction, Wynne, with the car owner's permission, used a hammer to break a window to free the child. In so doing, Wynne injured his hand.

Wynne testified that he was aware that, other than in high-speed pursuits, the regulations of the police department of the Town of Ramapo required him to obtain permission to take any police action outside of the jurisdiction of the Town of Ramapo.

A hearing officer confirmed a determination by the Ramapo Chief of the Police denying Wynne Section 207-c benefits. Wynne appealed, only to have his petition rejected by the Appellate Division.

The Appellate Division ruled that the determination that Wynne was not acting as a police officer in breaking the window to free the child, and thus, was not entitled to benefits pursuant to General Municipal Law Section 207-c, was rational and was supported by substantial evidence in the record.

In another “off-duty” police officer injury situation, the Attorney General concluded that “a City is not responsible, under Section 207-c of the General Municipal Law, for payment of salary or medical expenses to a police officer who is injured while he is off-duty and working as a security guard for a private employer. (Informal Opinion of the Attorney General, 81-52).

The fact that “the police officer was making an arrest at the time of his injury” did not persuade the Attorney General to the contrary regarding the City's obligation to proved Section 207-c benefits. However, the opinion noted that in some instances, such as an injury resulting from the arrest of a person under a warrant, and unrelated to the performance of his or her “off-duty” work, Section 207-c might apply.

In contrast, in Alifieris v American Airlines, 63 NY2d 370, the Court of Appeals ruled that an off-duty police officer who is sued as a result of his or her official actions, even if he or she acted outside the employing police agency's geographical jurisdiction, is entitled to indemnification if held liable for damages as a result of such off-duty conduct.

The Alifieris case involved an off-duty Suffolk County police officer who was sued by Alifieris for an alleged assault which had taken place in Brooklyn, New York. Cooper claimed that he was acting as a police officer at the time. Suffolk County had argued Cooper could not get indemnification because he was off-duty and outside Suffolk County's jurisdiction at the time the assault was alleged to have occurred.

However, the courts have noted that police officer's conduct, as with any employee, that "is brought on by a matter wholly personal in nature, the source of which is not job-related ... cannot be said to fall within the scope of his employment." [See Stavitz v City of New York, 98 AD2d 529.]

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Work-related stress

Work-related stress

Mattoon v Workers' Compensation Board, 284 A.D.2d 667

An employee is the target of some personnel change or action involving his or her position or assignment. The employee, claiming that the personnel action was “stressful,” quits and then files for unemployment insurance benefits. This was the situation underlying the appeal filed by Lori B. Mattoon.

Mattoon was employed by the New York State Department of Labor as an agency services representative. Her work assignment was changed by her new supervisor. In December 1993, Mattoon left her employment “due to work-related stress that resulted in depression, posttraumatic stress disorder and generalized anxiety disorder.” The Labor Department conceded that “the event ultimately triggering [Mattoon's] psychic injury was a new manager's reassignment of [Mattoon] to a particularly stressful work position.”

The Workers' Compensation Appeals Board, however, denied Mattoon's claim for workers' compensation benefits. The Board determined that Mattoon's inability to deal with her new assignment was a direct consequence of lawful personnel decisions, which were taken in good faith by the employer. Mattoon appealed, arguing that the Board's determination that she did not suffer a compensable psychic injury is not supported by substantial evidence.

The Third Department rejected Mattoon's appeal. It said that it was well established that a psychic injury based upon work-related stress is not compensable if it is “a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer.”

The decision comments that a “change of work duties” did not constitute a job transfer” within the meaning of Workers' Compensation Law Section 2.7.

AELE focus on personnel issues of interest to those in law enforcement and firefighting

AELE focus on personnel issues of interest to those in law enforcement and firefighting

Source: AELE

AELE, - on the Internet at http://www.aele.org/ - offers a unique resource, with free publications and online back issues since 2000 in three major areas:  

1. Law enforcement civil liability at http://www.aele.org/law/Digests/civilmenu.html

2. Employment law and discipline at http://www.aele.org/law/Digests/emplmenu.html

3. Jail and prisoner legal issues at http://www.aele.org/law/Digests/jailmenu.html

Readers may sign up for a news feed at http://www.google.com/ig/add?feedurl=http%3A%2F%2Fwww.aele.org%2Ffeed.xml

AELEs August 2011 issues of these several publications include the following items:

From the Law Enforcement Liability Reporter -- an article concerning the use of deadly force. Here SWAT officers were not liable for the death of a 19-month-old infant whom they accidentally shot while trying to rescue her from her cocaine using father, who was holding her hostage. It was held that the SWAT team had justification for the use of deadly force against the father, who had threatened to kill the child, kill himself, and anyone who entered his auto shop. “The officers acted in an objectively reasonable manner after the father shot at them while holding the child.” Lopez v. City of Los Angeles, #B219499, 2011 Cal. App. Lexis 729 (Cal. App.). On the Internet at: http://caselaw.lp.findlaw.com/data2/californiastatecases/B219499.PDF

From the Fire, Police & Corrections Personnel Reporter -- an article summarizing an appeal from a disciplinary hearings indicating that a police officer's federal lawsuit challenging his arrest and termination for allegedly misappropriating $600 from a crime scene during a search of a home were properly dismissed. The court held that the officers “post-suspension hearing satisfied due process requirements, even though it occurred fourteen days after his acquittal on criminal charges arising out of the incident.” Nunez-Colon v. Toledo-Davila, #09-1784, 2011 U.S. App. Lexis 10639 (1st Cir.). On the Internet at: http://caselaw.findlaw.com/us-1st-circuit/1568924.html

From the Jail and Prisoner Law Bulletin -- an item concerning inmate housing reporting that “A federal appeals court rejected a prisoner's argument that he had a right, under the Ninth Amendment, to choose his own cellmate.” Murray v. Bledsoe, #10-4397, 2011 U.S. App. Lexis 11702 (3rd Cir.). On the Internet at  http://caselaw.findlaw.com/us-3rd-circuit/1570207.html

Interested individuals may register to receive these free electronic publications at http://www.aele.org/law

Also available, AELE’s free search web site providing access to its database of more than 30,000 case summaries posted since 1975 at http://www.aele.org/htdig/common/search.html
 

Authority to initiate discipline for just cause implies the imposition of a “just penalty”

Authority to initiate discipline for just cause implies the imposition of a “just penalty”

Boston Med. Center v Local 285, 260 F.3d 16

Many collective bargaining agreements provide that an employee may be disciplined “for just cause.” However, few contracts define “just cause.”

In the Boston Medical Center [BMC] case, the U.S. Circuit Court of Appeals addressed the application of a negotiated agreement that permitted an employer to discipline employees for just cause. Its conclusion: the term just cause not only applies in initiating disciplinary action against an employee; it also encompasses the concept of imposing a “just penalty” based on the offense or offenses for which the employee is found guilty.

Katherine Hartney, a registered nurse [RN] employed by BMC for some ten years, was terminated following the death of an infant under her care. BMC's action was based on its determination that Hartney “engaged in serious substandard nursing practices” in caring for the infant.

The Union grieved Hartney's discharge to arbitration. The arbitrator ruled that BMC violated the collective bargaining agreement because it terminated Hartney without just cause. She reinstated Hartney and reduced the penalty imposed by BMC from discharge to an unpaid, nine-month suspension without pay. BMC attempted to have the arbitration award vacated.

The issues submitted to the arbitrator:

1. Did the Hospital violate Article XV of the collective bargaining agreement when it terminated the grievant, Katherine Hartney, on October 2, 1998?; and

2. If so, what shall be the remedy?” Article XV of the collective bargaining agreement provides: “No RN who has completed his/her probationary period shall be disciplined or discharged except for just cause.”

The arbitrator concluded that “there is just cause for the imposition of discipline in this matter but ... discharge is too harsh a penalty for an employee with an unblemished record of employment for nearly ten years.” In considering the appropriate penalty, the arbitrator said that:

“While [Article XV] makes no explicit reference to progressive discipline, it references 'just cause,' a concept which encompasses both liability for the action(s) charged and fairness in the amount of discipline imposed.”

BMC was ordered to reinstate Hartney, without back pay, and directed Hartney to participate in a remedial educational program as part of the reinstatement process.

The Circuit Court decided that the plain language of Article XV, requiring just cause before an RN is disciplined or discharged, contemplates a range of disciplinary penalty responses. The court said that it agreed with the arbitrator's rationale that the concept of just cause requires a close relationship between the employee's misconduct and the employer's response along that disciplinary range.

Thus, said the court, the arbitrator was free to conclude that there was no just cause for discharging Hartney, but that there was just cause for imposing a lesser disciplinary penalty. In other words, it was appropriate for the arbitrator to conclude that the employer's right to discipline an employee for just cause was subject to consideration of a just penalty as well. This concept has been recognized by New York State's Court of Appeals in Pell v Board of Education, 34 NY2d 222.

In reversing the district court's judgment granting summary judgment in favor of BMC, the Circuit Court said that it did not minimize in any way the tragic death of the infant. However, the court explained, BMC signed a collective bargaining agreement containing an arbitration clause conveying substantial authority to the arbitrator to decide whether there is just cause for discharge. If, said the Circuit Court, BMC wants to reserve more “disciplinary authority” to itself, it may attempt to do so during its next round of contract negotiations.

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

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Assigning a principal to a school

Assigning a principal to a school

Commissioner of Education's Decision 14,606

Section 100.2(a) of the Commissioner's regulations, requires a board of education to “employ and assign to each school under its supervision a full-time principal holding the appropriate certification....”

Parents of children attending Olean City School District elementary schools challenged a resolution adopted by the school board on November 21, 2000 providing “that an alternative mode of building administration be employed effective July 1, 2001 that would combine the principalship responsibilities of the North Hill and Boardmanville Elementary Schools.” The two schools are eight tenths of a mile apart. The parents asked the Commissioner to order the district “to comply with the Commissioner's regulations and retain a full-time principal for each school.”

Although the Commissioner dismissed the appeal as untimely, he cautioned that “it appears from the record that a variance request is required to effectuate respondent board's resolution.”*

As to the district's argument that the fact that the two schools are located 8/10 of a mile apart justifies the appointment of one principal for the two schools, the Commissioner said that “there are no distance prerequisites in the regulation that would obviate the need for the district to apply for a variance.”

The Commissioner distinguished between a situation such as Olean's where a district fails to assign a principal to each of its separate schools and a situation where a district has assigned a principal to “a school composed of more than one building in close proximity,” citing the appeal of the Middle Island Principals' Association, Commissioner's Decision 10,229.

The Commissioner advised the district “to carefully consider any principal appointments to assure compliance with all applicable regulations.” The State Education Department's variance office was directed to contact the district concerning the status of its principal appointments and the submission of a variance request in the event “an alternative mode of building administration” is still desired.

As an example, a variance was granted to a school district that had decided to administer its two smallest elementary schools by assigning a team of one principal and two assistant principals to them. The Commissioner rejected an appeal contending that the District could not do this [Commissioner's Decision 10,851], commenting that both assistant principals held valid elementary principal certificates and were qualified to perform the duties assigned to them.

* Section 100.3 of the Regulations of the Commissioner of Education permit a waiver from the general provision that “each school in a District shall have assigned to it a qualified principal.”

Teacher claims his harassment by students violates Title VII and the Civil Rights Act

Teacher claims his harassment by students violates Title VII and the Civil Rights Act

Peries v NYC Board of Education, USDC, EDNY, 97 CV 7109(APR), 2001 WL 1328921

Vincent Peries was born in Sri Lanka in 1933. After he came to the United States in 1968, he received a Ph.D. in Adapted Physical Education and Child Development, as well as an MBA in international finance and a M.Sc. in Teaching English as a Second Language. After teaching at several colleges, he taught at several New York City public schools, including at Francis Lewis High School. At Francis Lewis Dr. Peries taught special education courses, working in both a resource room setting, where students receive individual assistance, and in self-contained classes.

Dr. Peries' Title VII and 42 USC 1981 complaints alleged that since the early 1990s, he has been subjected to a “steady barrage of insults and demeaning conduct from students based on [his] national origin and race.”

Federal District Court Judge Ross said that Peries' claim in this case is unusual in that the alleged harassment was not by co-workers, but by Peries' students and neither party identified any litigation involving this type of harassment. Judge Ross said the “most relevant cases in the Title VII context are those in which an employee has been harassed by the customers of his employer.”

In one case involving employees harassed by their employer's customers, Quinn v Green Tree Credit Corp., 159 F.3d 759, the U.S. Circuit Court of Appeals, Second Circuit, held that in such situations “such a duty can be no greater than that owed with respect to co-worker harassment.” In Quinn, the court referred to 29 CFR 1604.11(e), which provides:

An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the [EEOC] will consider the extent of the employer's control and any other legal responsibility, which the employer may have with respect to the conduct of such non-employees.

Although there may be some circumstances in which an employer truly has little or no authority to control the actions of customers, rendering the employer's duty less than that for co-worker harassment, the relationship between school officials and students is not such a situation. In Davis v Monroe County Board of Education, 526 US 629, the Supreme Court held that a school board may be liable for the failure to stop students from sexually harassing other students if school officials are deliberately indifferent to the harassment.

As to Dr. Peries, the court said that he can prevail only if he can show first that a hostile environment existed and second that the school board either provided no reasonable avenue of complaint or knew of the harassment and failed to take appropriate remedial action.

Dr. Peries has shown the existence of a hostile work environment. The second issue: whether school officials took appropriate remedial action is a question of fact, not law.

The jury's analysis of this question can include such issues as what disciplinary options are available short of student suspension and what constitutes a proper division of student disciplinary responsibility between administrators and teachers.

Although Peries has failed to state a prima facie case with respect to his allegations that any school officials harassed him, his claim that school officials knew, or should have known, about the harassment by students and failed to take appropriate remedial action may go to a jury.

Accordingly Judge Ross ruled that Dr. Peries' Title VII hostile work environment claim against the Board of Education survived, but his civil rights claims against the individual defendants must be dismissed.