Employees disciplined for insubordination after failing to report co-worker's misbehavior

Employees disciplined for insubordination after failing to report co-worker's misbehavior

Hoey v PERB, 284 AD2d 633

Teacher aides employed by the Cayuga-Onondaga Board of Cooperative Educational Services [BOCES] were given specific instructions to report any concerns about classroom matters -- they were immediately to bring them to the attention of the supervisor of special education or the school principal.

According to the decision, the aides becoming aware that a teacher had engaged in bizarre and inappropriate behavior of a sexual nature with one of the students. About a month later, they reported the teacher's suspected conduct to one of their union representatives rather than BOCES's management. Two days later the union representative told BOCES of the aides' report.

Cheryle Hoey and a number of other aides were terminated after being found guilty of insubordination -- failing to comply with directives given to them directing them to report "concerns involving classroom matters." Hoey and the others challenged their dismissal, contending that they had been disciplined because of their engaging in protected union activities and filed improper practice charges with PERB.

PERB rejected the complaint and held that BOCES had not engaged in any improper practice in firing the aides. The Appellate Division sustained PERB's determination. The court ruled that the evidence amply supported PERB's findings that the aides had not been terminated for engaging in a protected activity but, rather, for failing to follow a supervisor's directive and jeopardizing the safety of a child under their supervision by failing to timely report suspected child abuse.

Although PERB agreed that the aides had engaged in a protected activity when they consulted with representatives of their union, it further determined that BOCES was not improperly motivated but, rather, had legitimate business and educational reasons for terminating Hoey and the other aides.

Freedom of Information requests

Freedom of Information requests

Chittenden v Novack, NYS Supreme Court, Westchester County, [Not selected for publication in the Official Reports]

In Chittenden, the court considered a number of issues concerning a union president's request for certain records under the Freedom of Information Law [FOIL]. Responding to a number of issues presented by the union's demand for information and records pursuant to FOIL, the court said:

1. A grievance procedure under the collective bargaining agreement was not the proper procedure for appealing the denial of FOIL requests.

2. A FOIL request for the names of all members of the police department who have been on chronic sick leave, with six questions regarding each member, is not a specific request for records.

3. Records disclosing the medical history of employees or applicants are exempt as an unwarranted invasion of personal privacy under the Public Officer's Law Section 89(2)(b)(i).

4. Attendance records or time sheets for employees that are redacted as to the medical reason for the absence are not an unwarranted invasion of personal privacy.

5. Records containing statistical data, such as the amount of sick time or vacation time accumulated or used, dates or times of an employee's attendance or absence, notations that sick leave or vacation time was charged, are relevant to public accountability and subject to disclosure.

6. Public inspections of portions of employment records or applications, which reveal an existing medical condition and/or treatment for disabilities is exempt from disclosure as “medical histories.”

7. A records access officer is not required to answer questions or analyze information on behalf of individuals or organizations making the request.

8. The agency must supply appropriate records upon its receipt of a proper request, provided such records exist, but is under no obligation to furnish records, which do not exist.

9. Intra-agency materials not subject to disclosure under FOIL. According to the ruling, “opinions, advice, evaluations, deliberation, proposals, policy formulation, conclusions or recommendations are exempt from public access” under FOIL, as are a government agency deliberative functions.

NYC Department of Sanitation employee acquitted of disciplinary charges

NYC Department of Sanitation employee acquitted of disciplinary charges

Dep’t of Sanitation v. Gonzalez (in PDF), OATH Index No. 1915/11

An OATH Administrative Law Judge found that the New York City Department of Sanitation failed to prove that a sanitation worker solicited money from an apartment building superintendent in order to remove broken furniture.

Judge John B. Spooner found that several factors, including the passage of time, an investigator’s failure to preserve a clear contemporaneous account from the complainant, and the complainant’s apparent confusion about another incident with a different worker two days later, undermined the Department’s proof and warranted dismissal of the charges. 

Contacting a party in an administrative proceeding using his or her last known address

Contacting a party in an administrative proceeding using his or her last known address

NYS National Organization for Women v Pataki, CA2, 261 F.2d 156

Courts sometimes provide insights into administrative due process procedures in the course of considering a case that essentially focuses on a completely different issue. In the National Organization for Women [NOW] case, which concerned due process in the adjudication of alleged violations of an individual's civil rights, one of the ministerial issues considered by the Circuit Court of Appeals, Second Circuit, was an administrative agency's duty to “track down” an individual.

In this “class action,” NOW sued the NYS Division of Human Rights [Division] on behalf of individuals who, since October 15, 1990, “had filed [or will file] complaints of discrimination with the Division and whose complaints have not been, or will not be, finally administratively adjudicated or otherwise substantively resolved within three years of the date of the filing of the complaint.” NOW alleged that the Division violated the class members' Fourteenth Amendment procedural due process rights as a result of its:

1. protracted delays in processing their discrimination claims that prejudiced such claims; and

2. deficiencies in notifying certain individuals that their claims were to be dismissed for “administrative convenience.”

One of the arguments advanced by NOW was that certain class members were not advised that the Division had dismissed their claims for “administrative convenience” because the Division was unable to locate them. It appears that these individuals had moved after filing their complaint but never advised the Division of their new address.

Was the Division incorrect when it dismissed discrimination complaints for “administrative convenience” because the Division was unable to locate the individual? The court said that the Division's use of the U.S. Postal Service to send the notice to complaints “at the last address furnished to the Division comports with due process.”

Sometimes such a “lack of notice” will become an issue in connection with a disciplinary hearing that has been conducted “in absentia.”

In “in absentia” disciplinary adjudications a hearing is held despite the employee's failure to appear at the hearing and his or her absence is unexplained. Typically the agency is required to prove its case against the employee to the hearing officer or arbitrator notwithstanding the absence of the employee or his or her representative.

Before holding a disciplinary hearing in absentia the employer or the hearing officer should make a reasonable attempt to locate the individual and determine the reason why he or she has not appeared at the hearing. It may be that the employee has a valid excuse for his or her nonappearance such as a family emergency or personal illness that would justify the hearing officer granting an adjournment of the hearing.

If the employee is found guilty of the charges and later challenges the determination, or the penalty imposed, on the grounds that he or she never received any notice of the time and place of the hearing because the notice was not sent to his or her “new address,” it seems clear that the courts will not be too sympathetic to such an argument unless the individual can show that he or she advised the employer of his or her new address and the employer neglected to note the change of address in its records.

Portal to portal pay

Portal to portal pay

Manners v State of New York, 285 A.D.2d 858, [Appeal dismissed, 97 N.Y.2d 637]

Charles W. Manners, Jr., a State Officer of General Services [OGS] construction superintendent asked the Court of Claims to direct OGS to pay him overtime compensation pursuant to the Fair Labor Standards Act (29 USC 201). Manners contended that OGS, by “requiring” him to use a State vehicle to commute to and from his assigned workstation, is obligated to pay him overtime for his commuting time.

The Court of Claims dismissed his claim [183 Misc 2d 382]. The Appellate Division, Third Department agreed, holding that although “the Fair Labor Standards Act [FLSA] requires employers to pay employees for all work performed, under the Portal-to-Portal Act (29 USC 251), time spent by an employee commuting to and from work, even in an employer-provided vehicle, is not compensable”

The court noted that there was no dispute that Manners was not engaged in any work-related activity while commuting to and from his assigned work station and thus the Court of Claims properly determined that this travel time was not compensable.