Probationer terminated for failure to correct a report

Probationer terminated for failure to correct a report
Morgan v Safir, 281 A.D.2d 376

The failure to correct his incorrect report resulted in the termination of New York City probationary police officer Lealand A. Morgan.

Morgan challenged his dismissal but he was unable to persuade the court to direct his reinstatement to his former position.

According to the decision, Morgan conceded that he failed to correct his report concerning the loss of his shield and identification badge after learning that it was incorrect.

This, said the Appellate Division, “indicates legitimate reasons for questioning [Morgan's] honesty and candor. In view of this, Morgan failed to show that his termination was in bad faith.”

Reinstatement from a preferred list

Reinstatement from a preferred list
Harvey v State of New York, 281 A.D.2d 846

On July 12, 1995, Ronald S. Harvey was laid off from his civil service position with the Department of Environmental Conservation. His name was placed on preferred lists and reemployment rosters for certification for appointment to comparable titles by the Department of Civil Service [DCS].

A clerical error resulted in Harvey's name being removed from the preferred lists and reemployment rosters on August 25, 1995. DCS corrected the error and restored Harvey's name to the appropriate lists October 31, 1995.

However, on November 1 and 2, 1995, other State agencies made permanent appointments to two Salary Grade 18 positions for which Harvey would have had seniority if his name had remained on the lists. Ultimately Harvey was reinstated to a Salary Grade 23 in the Division of Budget effective September 30, 1996.

Harvey sued, seeking compensation for the damages he suffered as a result of the removal of his name from the lists.

As the State stipulated to the fact that Harvey's name was erroneously removed from the lists, the primary issue is the scope and calculation of damages resulting from that error. Harvey, said the Appellate Division, has the burden of proving lost wages with reasonable certainty.

As Harvey proved with reasonable certainty that the persons hired on November 1 and 2, 1995 would not have received their jobs if his name had been on the lists, he was entitled to compensation for the period November 1, 1995 to September 30, 1996, the date he was actually rehired, based on employment in a Salary Grade 18 position.

Harvey's damages: The salary of a Grade 18 employee for that period plus lost retirement contributions, his expenses for health insurance coverage and 11 months of service credit in the NYS Employees' Retirement System. After making an adjustment for unemployment insurance benefits and “outside earnings,” the Appellate Division concluded that Harvey was entitled to $37,690 as damages.

Another aspect of the case concerned Harvey's demand for disclosure of vacancy and reemployment records. The court said that such records would not be of any relevant assistance to him. Why? Because, said the court, “at best, they would have revealed additional job openings for which he would have been qualified,” but this may be misleading as “the hiring agencies would not have been required to fill” any such position.

Tenure by estoppel

Tenure by estoppel
Wamsley v East Ramapo Central School District, 281 AD2d 633

If a school board neglects to take timely action to discontinue the services of a probationary teacher or administrator, the individual will attain what is termed “tenure by estoppel.” The Court of Appeals addressed the issue of an individual obtaining “tenure by estoppel” in the Sewanhaka case [Gould v Sewanhaka Central High School District, 81 NY2d 446].

However, “tenure by estoppel” is not limited to individuals in the unclassified service such as teachers and school administrators -- employees in the classified service also may attain tenure by estoppel as the Wamsley case demonstrates.

On October 5, 1998, East Ramapo appointed George Wamsley to the position of school bus driver, a classified service position in the noncompetitive class. Wamsley's appointment was subject to his satisfactorily completing a 26-week probationary period.

On August 18, 1999 the school district's personnel officer wrote to Wamsley advising him that he was to be dismissed because his service during his probationary period had been deemed unsatisfactory by his supervisors. Wamsley was terminated from his position effective August 25, 1999.

Wamsley sued, contending that his probationary term had expired before he was discharged and he held a tenured appointment. He also claimed that he was entitled to a “pretermination hearing” because he was an “exempt volunteer firefighter.”

The Appellate Division agreed with Wamsley's argument that he was no longer a probationary employee at the time he was discharged. In the words of the court, Wamsley's “probationary term began on October 5, 1998, and ended 26 weeks later ... as permissibly extended by his days of absence.”*

Accordingly, Wamsley's 26-week period, not having otherwise been extended as permitted by the rules of the Rockland Civil Service Commission, “expired long before his employment was terminated.”

However, there were other elements to consider concerning Wamsley's claim of a right to a pretermination hearing.

The due process procedures set out in Section 75 of the Civil Service Law are not available to a noncompetitive class employee who has less than five years of continuous service unless the individual is a veteran who served in time of war or is an “exempt volunteer firefighter.”

According to the Appellate Division, Wamsley claimed, but never established, that he was entitled to the protections of Section 75 because he was an exempt volunteer firefighter.

The Appellate Division concluded that although clearly Wamsley was not a probationer at the time of is dismissal, he raised a triable issue of fact with respect to his claim of Section 75 rights based on his status as an exempt volunteer firefighter.

According, a hearing on this aspect of this complaint was required and the matter was returned to State Supreme Court “for resolution of that factual issue.”

Two technical elements concerning exempt volunteer firefighter status should be noted:

1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [People v Hayes, 135 AD 19]; and

2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [Badman v Falk, 4 AD2d 149].

* Although decision indicates that Wamsley “became permanent” after the expiration of his 26-week probationary term, “probationary employees” in fact hold permanent appointments as of the effective date of his or her appointment to the position and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation. 

Employee's refusal to produce medical records results in dismissal of lawsuit

Employee's refusal to produce medical records results in dismissal of lawsuit

Peters-Turnbull v NYC Board of Education, CA2, 7 Fed. Appx. 107

Sometimes a plaintiff refuses to cooperate in pre-trial discovery procedures. The Peters-Turnbull case illustrates the difficulties that such lack of cooperation may cause the plaintiff.

Gloria Peters-Turnbull filed a complaint in federal district court alleging that the New York City Board of Education failed to reasonably accommodate her disability in violation of the Americans with Disabilities Act of 1990, and New York State's Executive Law §296. She also charged that the Board retaliated against her when she began to complain.

The district court ultimately granted the Board's motion to dismiss her complaints because she failed to cooperate in discovery proceedings. Among other things, the Board complained that Peters-Turnbull (1) failed to comply with its request that she report for a physical examination and (2) that she that refused to provide authorization for the release of her medical records to the Board.

According to the ruling, on May 4, 1999, the court held a conference and ordered Peters-Turnbull to respond to the Board's requests by May 25, 1999. She did not comply with this order. The court then ordered Peters-Turnbull to show cause why her lawsuit should not be dismissed for failure to respond to the Board's discovery requests. Peters-Turnbull failed to respond to this order by the court. The court then instructed the Board to move for dismissal based on Peters-Turnbull's failures to produce the requested discovery.

Peters-Turnbull appealed the dismissal of her petition, contending that the District Court abused its discretion in dismissing her claims with prejudice for failure to comply with its discovery orders.

The Circuit Court said that “five factors are used to determine whether such a dismissal is warranted.” The five tests are:

1. The duration of the plaintiff's failure to comply with court orders;

2. Whether the plaintiff was on notice that failure to comply would result in dismissal;

3. Whether the defendant is likely to be prejudiced by further delay in the proceedings;

4. A balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and

5. Whether the judge has adequately considered a sanction less drastic than dismissal.

Applying each of the factors, the Circuit Court said that it was satisfied that the District Court acted within its discretion in dismissing Peters-Turnbull's action.

The Circuit Court's rationale for its holding:

1. Peters-Turnbull's failure to comply with repeated discovery requests and court orders has extended this lawsuit over five years.

2. Peters-Turnbull received ample notice that further delays would result in dismissal of her case.

3, The duty of due diligence imposed upon plaintiffs under the rules rests upon the crucial policy of encouraging prompt disposition of cases. Therefore, although the District Court did not identify any specific prejudice to the Board, “prejudice to defendants resulting from unreasonable delay may be presumed.”

Although the District Court made no explicit findings with regard to its balancing of the need to alleviate court calendar congestion with Peters-Turnbull's right to due process, Peters-Turnbull received sufficient notice and a fair opportunity to be heard before the case was dismissed.

Finally, under the circumstances, the District Court had no reason to believe that lesser sanctions would be effective. Peters-Turnbull had been warned repeatedly and the issues on which discovery had not been produced constituted the essence of the case.

The Circuit Court affirmed the district court's dismissal of Peters-Turnbull's complaint with prejudice.

Rescinding an appointment granting tenure by mistake held lawful

Rescinding an appointment granting tenure by mistake held lawful
Shaffer v Schenectady City School Dist., CA2, 245 F.3d 41

If an appointing authority claims that it made a mistake in taking or confirming a personnel action, may it rescind the action or correct the error if the individual voices an objection? This is the underlying issue in the Shaffer case.

Commenting that relevant provisions of “Education Law admits of multiple readings” and that there is no relevant case law concerning the issue, the U.S. Circuit Court of Appeals, Second Circuit, “certified the question” to the New York State Court of Appeals to determine whether a teacher granted tenure by a school board resolution that states it is to be effective at some future date is immediately entitled to the protections of Section 3020-a of the Education Law available to tenured personnel.

Special education teacher Sharon Shaffer was told by the Superintendent that she would not be recommended for tenure at the end of her probation period. On June 2, 1998 the School Board adopted the following resolution:

“In accordance with the recommendation of the Superintendent of Schools in his written report ... the person whose name is set forth below is hereby appointed on tenure effective on the date set forth below.”

A list consisting of thirty-three names, including Shaffer's, entitled “Recommendation For Tenure” was appended to the resolution. The “tenure list” indicated the respective tenure areas, and effective tenure dates of the persons listed. Shaffer's tenure date was listed as September 1, 1998.

Claiming that its June 2, 1998, resolution incorrectly included Shaffer's name, on June 17, 1998, the Board voted to rescinded her “tenure appointment.” Its theory: on June 17, 1998, Shaffer “was not yet a tenured teacher, but one with merely an expectation of becoming tenured on September 1.”

Shaffer sued the District claiming it violated her rights under 42 USC 1983 when it revoked her tenure and dismissed her from her position. The District, on the other hand, contends that Shaffer inclusion on the “tenure list” attached to its June 2, 1998 resolution “was merely the result of a clerical error when [her name] was mistakenly included on a list of teachers to whom tenure was to be granted” and it acted promptly to correct the error.

The critical issue to be determined: did Shaffer acquired tenure as a result of the Board's action on June 2, 1998, and, if so, was the subsequent revocation of that tenure was lawful?

Considering the Board's argument that it cannot be bound if its action was the result of an “error” and therefore Shaffer cannot claim any right to tenure, summarized below are two decisions concerning the impact of a mistake made in reporting or recording a personnel action:

1. The Commissioner of Education, in Longshore v Massena Board of Education, 32 CEd 12839, considered the status of a part-time teacher whose “personnel action sheet” described his appointment as “probationary from September 1, 1991 until September 1, 1992.” Finding that “[t]he record supports [the District's] contention that the references in the personnel action sheet and notification of appointment form were erroneous,” the Commissioner ruled that Willard M. Longshore “was not appointed to a probationary position.” Accordingly, the District was not required to meet the notice requirements in Education Law Sections 3031 and 3019-a in order to terminate his employment.

2. In Moore v Smithtown Central School District, 116 AD2d 273, a “layoff seniority” case, the Appellate Division held that the fact that the district had, in error, included a communications skills teacher -- Moore -- on the “reading seniority list” was not controlling thus would not be relevant in determining Moore's preferred list status and reinstatement rights.

In Schaffer, 96 N.Y.2d 271, the Court of Appeals concluded "that a teacher granted tenure effective on a future date is not entitled to the benefits of tenure until the effective date specified in the resolution" and so advised the U.S. Circuit Court of Appeals.

N.B. In Gould v Board of Education, 81 NY2d 446, the New York State Court of Appeals held that a “tenured teacher has a protected property

Terminating a probationer while he or she is on a leave of absence

Terminating a probationer while he or she is on a leave of absence
Johnston v City of New York, 281 AD2d 322

Elaine Johnston, a probationary employee, challenged her termination from her position as a Caseworker with the New York City Administration for Children's Services [ACS].

According to the decision, Johnston suffered a job-related injury while she was serving as a provisional Caseworker.

ACS permanently appointed Johnston to the position of Caseworker while she was on leave. Her permanent appointment was subject to her satisfactory completion of a one-year probationary period. While still on leave, Johnston was terminated from her position before completing her probationary period.

The Appellate Division upheld Johnston's termination, rejecting her allegation that she was terminated in retaliation for a complaint she had made while a provisional about her supervisors' communication skills.

The court said that there was “ample evidence of [Johnston's] unacceptable work performance as a provisional that her supervisors began to document before she made her complaint about them.”

However, there are some troublesome aspects to this case.

According to the ruling, Johnston never actually performed any services as a Caseworker while a probationer -- she was absent on an authorized leave prior to and following her permanent appointment. ACS, said the court, relied on her “performance as a provisional in making its decision to terminate her permanent appointment.

Typically, a probationary period is extended if the individual is absent during his or her probationary period.

As to actually being evaluated on his or her performance while a probationer in contrast to his or her performance while serving in some other capacity -- i.e, as a temporary or provisional employee -- in Garcia v Bratton, 90 N.Y.2d 991, the court ruled that a probationary employee may not be dismissed until he or she has been given an opportunity to demonstrate his or her capacity to satisfactorily perform the duties of the position.

Finally, in York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows:

After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or made in bad faith.

The York decision is viewed as authority for requiring that a probationary employee be given administrative due process in the form of providing the employee with “notice and hearing” if the appointing authority decides to terminate the individual during his or her minimum period of probation.

Early retirement pay plans

Early retirement pay plans
Opinion of the State Comptroller - Opinion 2000 - 4

Early retirement or similar incentives are sometimes offered to employees.

M. Cornelia Cahill, Esq., on behalf of the Hadley-Luzerne Central School District, wrote to the State Comptroller seeking his opinion concerning a district's termination pay program having the following elements:

1. The plan would be established in accordance with the terms of a collective bargaining agreement.

2. The plan would provide an incentive to certain employees to terminate their employment with the school district, i.e., any employee choosing to participate in the program would receive post-separation cash payments of $400 per month for 120 months.

3. Eligible employees electing the plan would be required to agree to separate from service with the school district, but would not be required to commence their retirement benefits or otherwise retire from active employment other than with the school district.

The Comptroller said that a school district could establish such a plan to implement the terms of a collective bargaining agreement where:

1. The program is to provide an incentive to certain employees to separate from service, irrespective of whether the employee begins receiving retirement benefits;

2. Payments are made to employees separating from service who are at a specified minimum salary level or who have a minimum number of years of service; and

3. Periodic payments, in the same fixed amount over the same fixed period of time, would be paid to each qualifying employee.

The Comptroller concluded that neither Section 201(4) of the Civil Service Law nor Sections 113 and 470 of the Retirement and Social Security Law prohibited the district from establishing a program providing for payments to an eligible employee to be made over a period of years rather than as a single lump-sum payment upon separation from service. 

The Comptroller said: There is ... no nexus between an employee's retirement and eligibility for these payments ... the amount and duration of these payments are not open-ended ... [and] although there are threshold years of service and minimum salary criteria, the payments to each qualifying employee who chooses to separate from service are the same, regardless of years of service or level of compensation beyond the threshold.

Unemployment insurance - voluntarily leaving employment

Unemployment insurance - voluntarily leaving employment
LaClair v SUNY Research Foundation, 281 AD2d 677

Veronica A. LaClair challenged a determination by the Unemployment Insurance Appeals Board denying her unemployment insurance benefits on the grounds that she had voluntarily left her employment with the State University Research Foundation without good cause.

LaClair was employed as a part-time. She resigned from her position because she believed the Research Foundation would be unable to assign her a minimum of 20 hours of work per week. The decision notes that LaClair submitted her resignation “despite the employer's request that she delay her resignation while it attempted to adjust her work schedule.”

Affirming the Board's determination rejecting LaClair's application for benefits, the Appellate Division said that it is well settled that “dissatisfaction with the number of hours assigned by one's employer does not constitute good cause for resigning.” 

Vacating an arbitrator's award based on a finding it constituted a violation of public policy

Vacating an arbitrator's award based on a finding it constituted a violation of public policy
Nassau Co. v Sheriff's Officers Association, Supreme Court, Nassau County, Justice Ralph P. Franco, [Not selected for publication in the Official Reports], reversed, 294 AD2d 31

Vacating an arbitrator's award is not an easy task. Article 75 of the Civil Practice Law and Rules sets out the limited basis for overturning an arbitration award as follows:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except where the award is by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

(iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.

In addition, courts have vacated arbitration awards found to violate strong public policy.

This case arose as a result of Gemelli, a Nassau County corrections officer, being found guilty of assaulting an inmate under his care by a federal district court jury.

As a result the Sheriff terminated Gemelli from his position effective March 1, 1999. Gemelli filed a grievance challenging his dismissal and eventually the matter was submitted to arbitration.*

The Arbitrator made the following award:

1. The County's discharge of the grievant, Salvatore Gemelli, was not time barred.

2. The County did not have just cause to discharge Gemelli.

3. Gemelli shall, forthwith, be made whole for any wages and benefits lost, less any interim earnings, for the period of March 1, 1999, until Gemelli's retirement, effective May 27, 1999.

Nassau County brought an Article 75 action in an effort to vacate the arbitrator's award. The Sheriff's Officers Association, on the other hand, asked the court to confirm the award.

Justice Franco, after reading the arbitrator's decision and award, said:

1. An arbitration award shall be vacated where it is totally irrational or violative of strong public policy.

2. The arbitrator's award in this instance conflicts with strong public policy.

The court indicated that Gemelli, in exercising his responsibilities, was required to protect and care for this mentally retarded inmate under his care at the jail.

In contrast to Gemelli's actions, Justice Franco said that “[t]he inmate was to be protected by him, not assaulted by him as the jury found in the Federal trial.”

Turning to the arbitrator's holdings overturning Gemelli's termination, the court ruled that “[a]s his conduct was clearly a violation of public policy, he was justly discharged and is not entitled to be made whole for wages.”

The Appellate Division disagreed, concluding that at issue on this appeal is whether the arbitrator's award in this proceeding pursuant to CPLR Article 75 was violative of public policy. 

Because the petitioner County of Nassau failed in the Supreme Court to sustain its burden of demonstrating a strong and well-defined public policy with which the arbitrator's award conflicts, the Appellate Division reverse the order of the Supreme Court, deny the petition, and grant the cross motion to confirm the arbitrator's award.

* Gemelli retired while the disciplinary arbitration procedure was still  pending.

Giving an employee a “warning” is not an adverse personnel action within the meaning of New York’s Human Rights Law

Giving an employee a “warning” is not an adverse personnel action within the meaning of New York’s Human Rights Law

Carter v NYC Dept. of Corrections, CA2, 7 Fed. Appx. 99

In 1991 Charles Carter filed a complaint with the New York State Division of Human Rights (SDHR) that alleged racial discrimination in employment. He later filed an amended complaint to include retaliation.

Thereafter a number of events occurred, culminating in an appeal challenging the dismissal of the then pending discrimination action by a federal district court judge.

The surviving issue, and the subject of this appeal, involved Carter's allegation that disciplinary charges filed against him by the New York City Department of Corrections at various times during 1996 constituted unlawful retaliation for his filing discrimination complaints against the agency. As it turned out, the critical factor in resolving Carter's appeal was the fact that no final action was taken to resolve these disciplinary charges.

Considering the merits of Carter's claims of retaliation, the Circuit Court of Appeals said that Carter failed to establish a prima facie case of retaliation under Title VII based on the 1996 disciplinary charges.

According to the ruling: To establish a prima facie case for retaliation, a plaintiff must show that (1) the employee was engaged in a protected activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action.

Clearly, a causal connection can be established directly through evidence of retaliatory animus or “indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct.

However, said the court, Carter did not present evidence that DOC acted with “retaliatory animus” against him when it filed disciplinary charges or that it treated him in a different manner than any other employee who engaged in similar conduct. The court said that Carter's conclusory allegations that DOC brought the charges in an “overzealous” manner are insufficient to raise a triable claim.

Of significant importance in resolving this appeal, however, was the fact that none of the 1996 disciplinary charges brought against Carter were actually adjudicated or resulted in any punishment being imposed against him. Thus, said the Circuit Court, Carter is unable to show that he suffered an adverse employment action, a key element to showing a prima facie case of retaliation.

The decision notes that in Yerdon v Henry, 91 F.3d 370, the court ruled that the filing of charges against employee that were not adjudicated did not constitute retaliation.

In addition, the court pointed out that in Matter v Eastman Kodak Co., 104 F.3d 702, the Fifth Circuit Court of Appeals said that threats of termination, reprimands, hostility from fellow employees, and being placed on warning were not “ultimate employment decisions” and thus not “adverse employment actions.”

With regard to Carter's pre-1996 claims of unlawful discrimination, SDHR investigated Carter's claims and, by an opinion dated October 4, 1994, found no probable cause that DOC had discriminated against him.

The EEOC similarly concluded that Carter had not produced evidence of a Title VII violation.