Judicial review of administrative decisions

Judicial review of administrative decisions
Albano v NYC Fire Pension Fund, Court of Appeals, 98 N.Y.2d 548

What are the controlling rules to be followed by the courts in cases involving challenges to administrative decisions that concern the interpretation or application of a statute? In the Albano case, the Court of Appeals sets out the criteria used by courts in determining the weight to be accorded such administrative determinations.

The basic rule applied in such cases, said the court, is as follows:

In contrast to matters requiring "pure statutory interpretation" of the controlling law by the courts, where the interpretation or application of a statute "involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data" within the expertise of the agency administering the statute, courts accord great deference to the agency's judgment unless it is "irrational or unreasonable"

Here the statute involved was General Municipal Law Section 207-kk, the so-called Cancer Bill.

Section 207-kk provides that:

Notwithstanding any other provisions of this chapter to the contrary, any condition of impairment of health caused by (i) any condition of cancer affecting the lymphatic, digestive, hematological, urinary or prostate systems ... [of a] member of a fire department in a city with a population of one million or more, who successfully passed a physical on entry into the service of such department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty unless the contrary be proved by competent evidence.

Section 207-kk was enacted after medical data demonstrated that there was a high incidence of cancer in firefighters, as compared with the average adult population. The statute creates a rebuttable presumption that a firefighter who develops certain enumerated types of cancers, incurred them in the course of performing his or her duties, thereby eliminating the burden of proving causation.

In other words, the "rebuttable presumption" provided by the Section 207-kk permits the disabled firefighter to establish a prima facie case that his or her cancer incurred as the result of his or her performing firefighter duties. The employer may then attempt to rebut this presumption by introducing evidence that establishes that the cancer was the result of some other cause or does not involve the types of cancers described in the statute.

Emil Albano, a New York City firefighter for 30 years, was diagnosed with testicular cancer. He filed an application for an accident disability pension [ADR] on the ground that his cancer had presumptively been caused by the performance of his firefighting duties. The Medical Board of the New York City Fire Department Pension Fund found that Albano was, in fact, disabled, but recommended he be awarded an ordinary disability retirement allowance [ODR] rather than the ADR retirement allowance for which he had applied.

The reasons given by the Medical Board:

Although Albano is disabled from performing full fire duties due to testicular cancer, there was no evidence that Albano's lymphatic or urinary systems were involved as a result of his medical condition.

The Board of Trustees split on the question and, under its longstanding practice in such situations, the recommendation of the Medical Board was adopted: i.e., Albano's application for ADR benefits was denied but the Medical Board's recommendation that Albano be awarded ODR pension benefits was approved.

The issue before the Court of Appeals:

Was the denial of ADR benefits based on the Medical Board's finding that Albano's testicular cancer is not a cancer "affecting the lymphatic, digestive, hematological, urinary or prostate systems" rational and supported by substantial evidence?

The court said that the decision was both rational and supported by substantial evidence. In this instance the court concluded that the resolution of the issue "involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data” and thus the Board's administrative ruling was entitled to great deference because it was not shown to be either irrational or unreasonable.

In contrast, where, the question is one of pure statutory interpretation there is little basis to rely on any special competence or expertise of the administrative agency, courts "need not accord any deference to the agency's determination" and can undertake its function of statutory construction.

In Albano's case, in order to decide whether Albano was entitled to an ADR pension, the Medical Board and the Trustees were called upon to interpret the applicability of the statute in Albano’s case. This interpretation involved its respective expertise in the evaluation of factual data. Accordingly, said the Court of Appeals, the administrative decision is to be afforded deference.

In addition, the court ruled that because testicular cancer is not enumerated as a cancer entitled to the statutory presumption -- the statute offers presumptive coverage for cancers affecting the lymphatic, digestive, hematological, urinary or prostate systems -- the Board was required to use its medical expertise to decide whether testicular cancer "affects the urinary or prostate systems." Again, this question was a question involving the expertise of the Medical Board and the Retirement Board of Trustees.

Concluding that there was a rational basis for the Medical Board's decision, the Court of Appeals dismissed Albano's appeal.

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law
Source: Justia October 7, 2011

Bhatti v. Trustees of Boston Univ.

Court: U.S. 1st Circuit Court of Appeals

Docket: 10-2342

October 3, 2011

Judge: Thompson

Areas of Law: Civil Rights, Labor & Employment Law

Plaintiff, a dental hygienist at defendant's dental health center for more than 10 years, claimed that supervisors subjected her to unpaid work hours because she is black and then to selective discipline and other malfeasance in retaliation for questioning her unpaid hours. The district court entered summary judgment for defendant. The First Circuit affirmed. Plaintiff established only "a litany of petty insults, vindictive behavior, and angry recriminations" that are not actionable.

http://j.st/cyt

Rojas v. The Roman Catholic Diocese of Rochester, et al.

Court: U.S. 2nd Circuit Court of Appeals

Docket: 10-4132

October 4, 2011

Judge: Per curiam

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Plaintiff appealed from the district court's grant of summary judgment in favor of defendants on her claims of sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq, and the New York State Human Rights Law, N.Y. Exec. Law 290-301. The district court granted summary judgment after determining that plaintiff had offered "sham evidence" in opposition to defendants' motions for summary judgment. The court held that the district court did not err in concluding that, in light of plaintiff's inconsistent and contradictory testimony, there was no genuine issue of fact to be decided by a jury. Accordingly, the court affirmed summary judgment in favor of defendants.

http://j.st/cts

American Home Assurance Co, et al. v. Cat Tech L.L.C.

Court: U.S. 5th Circuit Court of Appeals

Docket: 10-20499

October 5, 2011

Judge: Per curiam

Areas of Law: Arbitration & Mediation, Contracts, Insurance Law, Labor & Employment Law

This case arose when Cat Tech sought indemnification from its insurers after Cat Tech damaged several components of a hyrotreating reactor owned by Ergon Refining, Inc. and arbitrators entered an award against Cat Tech for the damage. Insurers subsequently denied the claim, contending, inter alia, that the "your work" exclusion found in the policies precluded coverage for damage to the reactor. The district court found that insurers had no duty to indemnify Cat Tech. The court held that the information contained in the arbitration award was insufficient to properly apply the "your work" exclusion. As such, the court concluded that the district court erred when it relied on the award in granting insurer's summary judgment motion. On remand, the district court should conduct any additional fact-finding necessary to determine whether the damage suffered by Ergon's reactor was limited only to those components upon which Cat Tech worked, or instead included other components unrelated to Cat Tech's operations. Accordingly, the judgment was reversed and the case remanded for further proceedings.

http://j.st/pSU

Wesley v. General Drivers, et al.

Court: U.S. 5th Circuit Court of Appeals

Docket: 11-10120

October 5, 2011

Judge: Prado

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

This case involved a claim brought under 42 U.S.C. 1981 by a terminated employee against his former union, which represented him in a grievance hearing in connection with his termination. Plaintiff alleged that defendants discriminated against him on account of his race by failing to argue during the grievance hearing that he was being terminated for a racially discriminatory reason. The court held that plaintiff failed to state a prima facie claim for racial discrimination by the union under section 1981, and therefore the district court was correct to grant defendants' motion for summary judgment.

http://j.st/pJT

Egan v. Freedom Bank

Court: U.S. 7th Circuit Court of Appeals

Docket: 10-1214

October 6, 2011

Judge: WILLIAMS

Areas of Law: Labor & Employment Law

Seven months after the bank recruited plaintiff to serve as a vice presidents, it fired her. She had no performance issues, no attendance problems, and no complaints against her. She had dinner with a member of the board of directors, who told her the fantasies he had about her. She declined his advances and complained to human resources. The board member resigned. Shortly after that, the bank's new president told its then-president that he heard plaintiff had done something that she should have been fired for. About two months after the new president assumed office, plaintiff was fired. The district court entered summary judgment for defendants on her retaliation claims under Title VII, 42 U.S.C. 2000e-3. The Seventh Circuit reversed. A retaliatory discharge case must be tried unless defendant presents unrebutted evidence that it would have taken the adverse employment action against the plaintiff in any case.

http://j.st/p5z

Tactical Stop-Loss, LLC, et al. v. Travelers Casualty and Surety Co.

Court: U.S. 8th Circuit Court of Appeals

Docket: 10-2787

September 30, 2011

Judge: Loken

Areas of Law: Contracts, Insurance Law, Labor & Employment Law

Plaintiffs commenced a diversity action against defendant, asserting claims for breach of the insurance contract and for vexatious refusal to pay. Applying Missouri law, the district court granted defendant summary judgment, concluding that the insurance policy at issue unambiguously excluded losses caused by plaintiffs' CEO, a shareholder, and by plaintiffs' COO, a non-shareholder, acting in collusion with the CEO. The court affirmed and held that the Officer-Shareholder exclusion was consistent with Missouri public policy, and in the alternative, the Officer-Shareholder exclusion was unambiguous and excluded plaintiffs' claim.

http://j.st/cCr

Bledsoe v. U.S. Postal Svc.

Court: U.S. Federal Circuit Court of Appeals

Docket: 11-3054

October 3, 2011

Judge: Linn

Areas of Law: Civil Rights, Government & Administrative Law, Injury Law, Labor & Employment Law

Plaintiff, a mail processing clerk, was injured on-duty in 2005 and received workers' compensation. She partially recovered and, in 2008, the Postal Service provided a modified light duty assignment. In June 2010, pursuant to the National Reassessment Process, the Postal Service informed plaintiff that work within her medical restrictions was no longer available in her commuting area. The Merit Systems Protection Board dismissed her claim under 5 C.F.R. 353.304(c)) of wrongful denial of restoration following partial recovery from a compensable injury. The Federal Circuit affirmed. The Board applied the correct standard in determining its jurisdiction, and its factual determinations were supported by substantial evidence. Plaintiff did not identify any vacant position available within her commuting area that she was able to perform. Plaintiff did not make a non-frivolous allegation that the Service acted arbitrarily in not restoring her, even after the Board ordered her make such a showing and afforded her time to do so.

http://j.st/cyx

Romero v. Dep't of Def.

Court: U.S. Federal Circuit Court of Appeals

Docket: 10-3137

October 3, 2011

Judge: Prost

Areas of Law: Aerospace/Defense, Government & Administrative Law, Labor & Employment Law

In 2006, plaintiff, employed as an auditor at the Department of Defense was removed from his position for failing to maintain his Secret level security clearance. His loss of security clearance was based on his wife's status as a diplomat for Honduras. The Merit Systems Protection Board affirmed. The Federal Circuit affirmed. The DoD complied with its internal procedures in revoking plaintiff's security clearance and the decision was supported by substantial evidence.

http://j.st/cyc

Keane v. Fischetti

Court: Connecticut Supreme Court

Docket: SC18377

March 15, 2011

Judge: Zarella

Areas of Law: Constitutional Law, Injury Law, Labor & Employment Law

These two consolidated appeals arose from the collision of two city fire trucks. As a result of the collision, firefighter John Keane died, and firefighter William Mahoney suffered serious injuries. Monica Keane brought an action against Defendants, the firefighters who drove the trucks, alleging negligence in their operation of the fire trucks and that their negligence caused John Keane's death. In the second case, William and Erin Mahoney filed a complaint against Defendants, two firefighters and the city, alleging that the firefighters were negligent and that their negligence caused William Mahoney to sustain injuries. In both cases, the trial court granted the motions of Defendants to strike all counts of the complaint, concluding that Conn. Gen. Stat. 7-308 barred firefighters who are eligible to receive workers' compensation benefits from bringing negligence actions against other firefighters for their injuries. The Supreme Court affirmed the judgments of the trial court, holding that section 7-308 does not violate equal protection and, therefore, the trial court properly granted Defendants' motions to strike on the ground that the actions were barred by the immunity provision in section 7-308.

http://j.st/cFZ

Mulligan v. Selective HR Solutions, et al.

Court: Georgia Supreme Court

Docket: S10G1899

October 3, 2011

Judge: Hines

Areas of Law: Injury Law, Labor & Employment Law

The court granted certiorari to the Court of Appeals in order to consider whether the Court of Appeals erred in concluding that the State Board of Worker's Compensation exceeded its authority in promulgating its Rule 205. The court held that, contrary to the analysis and resulting conclusion by the Court of Appeals, Rule 205 was not burden-shifting in the manner found and did not interfere with the substantive rights of the parties. The court also held that there was evidence to support the subject ruling that Mulligan did not sustain a subsequent compensable injury. Therefore, the judgment of the Court of Appeals reversing the order of the superior court interpreting Rule 205 was affirmed.

http://j.st/cFj

Franklin Elec. Co. v. Unemployment Ins. Appeals of the Ind. Dep't of Workforce Dev.

Court: Indiana Supreme Court

Docket: 93S02-1102-EX-89

September 29, 2011

Judge: Shepard

Areas of Law: Business Law, Government & Administrative Law, Insurance Law, Labor & Employment Law

Franklin Electric formed two new subsidiaries and started new unemployment experience accounts with a low introductory contribution rate for each one, which equaled about half the experience rating of Franklin Electric. The Department of Workforce Development later canceled the subsidiaries' experience accounts, and all experience balances and liabilities reverted to Franklin Electric. The Department also demanded back payments, interest, and a ten percent penalty. A liability administrative law judge (LALJ) affirmed the Department's determination that the three entities were a single employer but waived the penalty imposed by the Department. The court of appeals affirmed. The Supreme Court granted transfer and vacated the opinion of the court of appeals and affirmed the determination of the LALJ, holding (1) the new subsidiaries were not new employers because they were not distinct and segregable from Franklin Electric; (2) Franklin Electric's experience rating should have applied to contributions made by the subsidiaries; and (3) because there was no evidence suggesting improper conduct on the part of Franklin Electric, the penalty was not appropriate.

http://j.st/cri

City of North Las Vegas v. State Employee-Mgmt. Relations Bd.

Court: Nevada Supreme Court

Docket: 54849

September 29, 2011

Judge: Cherry

Areas of Law: Contracts, Government & Administrative Law, Labor & Employment Law

Eric Spannbauer, a police officer with the North Las Vegas Police Department, was asked to resign by the City Police Department Association. Spannbauer resigned, signing a letter of agreement prepared by the Department. Spannbauer later filed a complaint with the Employee-Management Relation Board (EMRB) against the Association, the City, and the Department, alleging multiple prohibited practices in violation of Nev. Rev. Stat. 288, including gender discrimination. The EMRB found that the City and Department had committed prohibited labor practices and that the Association had breached its duty of fair representation. The City and the Department petitioned the district court for judicial review, which the district court denied. The City, on behalf of itself and the Department, filed an appeal. The Supreme Court affirmed, holding that there was substantial evidence to support the EMRB's finding that the City and Department discriminated against Sannbauer on the basis of his gender in violation of Nev. Rev. Stat. 288.110(1)(f); and (2) the EMRB appropriately disregarded the resignation agreement, including the covenant not to sue, as there was substantial evidence that the agreement was a culmination of prohibited practices in violation of Nev. Rev. Stat. 288.270(1).

http://j.st/cKj

City of North Las Vegas v. Warburton

Court: Nevada Supreme Court

Docket: 55502

October 6, 2011

Judge: Hardesty

Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law

Mallory Warburton was working for the City of North Las Vegas when she was involved in a car accident and suffered numerous injuries. The City started paying workers' compensation benefits to Warburton at a rate of $10 an hour. At the time of the accident, Warburton was expected to make $12 an hour because of a promotion to manager of one of the City's pools. After an administrative appeal, a hearing officer instructed the City to redetermine Warburton's benefits using the $12-an-hour rate of pay for a pool manager. An appeals officer reversed, concluding Warburton's benefits should be based on the $10-an-hour rate of pay she was actually receiving at the time of the accident. The district court reversed the appeals officer's decision. The Supreme Court affirmed, holding that the appeals officer's conclusion was not supported by substantial evidence and that substantial evidence supported the district court's determination that (1) Warburton's primary job at the time of the accident was that of pool manager, and (2) Warburton's workers' compensation benefits must be determined using an average monthly wage calculation at the $12-an-hour rate of pay.

http://j.st/pTW

State ex rel. Mackey v. Dep't of Educ.

Court: Ohio Supreme Court

Docket: 20101405

September 29, 2011

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Injury Law, Labor & Employment Law

Appellant Cerena Mackey was employed by the Ohio Department of Education when she suffered an industrial injury. After she retired from the workforce, Mackey filed for permanent total disability (PTD) compensation. The Industrial Commission of Ohio granted compensation to Mackey. The Department moved for reconsideration, alleging that the hearing officer had made a clear mistake of law in failing to determine whether Mackey's retirement was voluntary or involuntary. The Commission granted the motion and, after a hearing, vacated the award, finding (1) Mackey's retirement was unrelated to her injuries and was hence voluntary, and (2) Mackey's voluntary retirement foreclosed PTD compensation. Mackey filed a complaint in mandamus in the court of appeals, which the court denied. The Supreme Court affirmed, holding that the Commission did not abuse its discretion in (1) reopening the issue of Mackey's PTD eligibility in order to consider the effect of her retirement upon it, and (2) finding that Mackey's retirement was voluntary.

http://j.st/crd

State ex rel. Cinergy Corp. v. Heber

Court: Ohio Supreme Court

Docket: 20101535

October 4, 2011

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law

In 1970, while working for Employer, Employee was injured. In 1989, Employee retired. In 2008, Employee applied for permanent total disability (PTD) compensation. The Industrial Commission of Ohio concluded that Employee was permanently and totally disabled without ruling on the credibility of the assertion that Employee retired because of his injury or determining whether his retirement was voluntary or involuntary. The court of appeals granted Employer a limited writ of mandamus that vacated the Commission's order and ordered the Commission to reconsider the matter. The Supreme Court affirmed the court of appeals, holding that because a voluntary retirement from the work force prior to asserting PTD precludes the payment of compensation for that disability, the court of appeals was correct in ordering further consideration of whether Employee retired because of his injury and whether his retirement was voluntary.

http://j.st/pom

Evans & Assoc. Utility Svcs. V. Espinoza

Court: Oklahoma Supreme Court

Docket: 108017

October 4, 2011

Judge: Kauger

Areas of Law: Labor & Employment Law, Public Benefits

Petitioner Ruben Espinosa sought permanent partial disability benefits for injuries to his hands, arms, and shoulders. The Workers' Compensation Court awarded benefits, but a three-judge en banc panel reduced the award to account for Petitioner's previously awarded benefits for injuries to other parts of his body. The Court of Civil Appeals vacated the panel, determining that both the trial court and the panel misapplied the applicable statute. The Supreme Court granted certiorari to resolve a conflict between two Court of Civil Appeals' opinions with differing interpretations of the limitations provided in the applicable statute. Upon review, the Supreme Court held that when the Workers' Compensation Court awards compensation for an accidental personal injury or occupational disease, pursuant to 85 O.S. 2001 Sec. 22(7), the sum of all permanent partial disability awards is limited to a total of 100% or 520 weeks (10 years) for any individual, but awards against the Multiple Injury Trust Funds, or awards for amputations and surgeries are excluded from both limitations.

http://j.st/cvU

Goodson v. Public Employees Retirement System

Court: Oregon Supreme Court

Docket: S059056

October 6, 2011

Judge: DeMuniz

Areas of Law: Government & Administrative Law, Labor & Employment Law, Public Benefits

Petitioners sought judicial review of a final order of the Public Employees Retirement Board (PERB). They contested the reduction of their retirement benefits as a result of PERB's efforts to recoup benefit overpayments that Petitioners had received because of an erroneous 20 percent earnings credit for 1999. The Court of Appeals certified the matter to the Supreme Court, and upon review of the applicable legal authority, the Supreme Court affirmed PERB's final order.

http://j.st/pSz

Arken v. City of Portland

Court: Oregon Supreme Court

Docket: S058881

October 6, 2011

Judge: DeMuniz

Areas of Law: Government & Administrative Law, Labor & Employment Law, Public Benefits

This opinion consolidated two cases brought before the Supreme Court on certified appeals from the Court of Appeals. Both cases involved the Public Employees Retirement Board's (PERB or the Board) revision or reduction of benefits with respect to "Window Retirees." These cases involved the Board's efforts to recoup overpayments of benefits to retirees that were predicated on a 20 percent earnings credit for calendar year 1999 that the Board approved by order in 2000. PERB sought to recoup these overpayments to the Window Retirees through an overpayment recovery mechanism set out in ORS 238.715.2. A number of members challenged the statutory mechanism for returning the payments, and the methodology the Board used in making its individualized determinations. Upon review, the Supreme Court determined that the trial court correctly granted summary judgment to the "Arken defendants" on all four of the claims raised by the "Arken plaintiffs." Furthermore, the Court determined that the trial court erred in granting summary judgment to the "Robinson petitioners" on their claims for relief. Because the Court concluded that PERB correctly applied ORS 238.715 to recoup overpayments that were made to the Window Retirees based on the 20 percent earnings credit for 1999, the Court also determined that the trial court erred in denying PERB's cross-motion for summary judgment.

http://j.st/pTE

Workers Comp. Fund v. Argonaut Ins. Co.

Court: Utah Supreme Court

Docket: 20100211

October 4, 2011

Judge: Parrish

Areas of Law: Contracts, Injury Law, Insurance Law, Labor & Employment Law

The underlying dispute in this appeal revolved around the issue of who was contractually obligated to pay workers' compensation benefits to an employee of Employer. The Supreme Court found that Employer's Insurer was required to pay workers' compensation benefits for all of Employer's employees and remanded the case. The district court entered a final judgment. Instead of filing a notice of appeal within thirty days of the district court's judgment, Insurer filed an "objection to judgment." Insurer then filed its notice of appeal within thirty days of the district court's order disposing of that motion. The Supreme Court dismissed the appeal, holding that it lacked jurisdiction to address the appeal as (1) Insurer did not file its notice of appeal within thirty days of the district court's final judgment, and (2) Insurer failed to file a postjudgment motion that would toll the time for appeal or one that the Court had jurisdiction to review.

http://j.st/p5F

Injury on the job may not qualify for accidental disability retirement benefits

Injury on the job may not qualify for accidental disability retirement benefits
Silver-Smith v McCall, 298 AD2d 696

Fred Silver-Smith, a court officer, applied for accidental disability retirement benefits as a result of an injury that he sustained in the course of physically restraining and removing an unruly prisoner from the courtroom where he was working. His application was rejected by the Employees' Retirement System because "the incident involved a risk inherent in [Silver-Smith's] employment and did not constitute a qualifying accident as that term is used in Retirement and Social Security Law Section 605-a."

Quoting from McCambridge v McGuire, 67 NY2d 563, the Appellate Division said that for the purposes of establishing a valid claim for an accidental disability retirement benefit, the individual must demonstrate that he or she was the victim of "a precipitating accidental event ... which was not a risk of the work performed."

Since Silver-Smith's injury was conceded to have occurred as the result of his having restrained a person who was threatening the peace and security of a court proceeding, and this activity was a regular, though infrequent, part of his duties, the court ruled that his injury "resulted from a recognized risk inherent in [Silver-Smith's] normal duties and thus was not an accident within the ambit of the statute."

Although the specific outburst which required Silver-Smith's intervention in this instance was abrupt and unexpected, the court said that the "maintenance of order by restraining unruly persons in the courtroom was a recognized part of his normal duties." Accordingly, the Appellate Division ruled that there is substantial evidence supporting the Comptroller's determination that Silver-Smith did not qualify for accidental disability retirement benefits.

State Insurance Fund penalized for unilaterally discontinuing claimants workers’ compensation benefits

State Insurance Fund penalized for unilaterally discontinuing claimants workers’ compensation benefits

Matter of Gillan v New York State Dept. of Corrections, 2011 NY Slip Op 06959, Appellate Division, Third Department

Dennis Gillan, correction officer employed by the New York State Department of Corrections suffered a work-related injury and was receiving workers’ compensation benefits from the State Insurance Fund [SIF], the Department’s workers' compensation carrier based on a determination that he had a “permanent partial disability.”

SIF, however, subsequently unilaterally stopped paying compensation benefits to Gillan on the basis that a "fraud referral" concerning Gillan had been submitted by the Orange County District Attorney's office. It is undisputed that all criminal charges stemming from this referral were dismissed.

Gillan, alleging that SIF had improperly suspended compensation payments without following proper procedures, was awarded back benefits by a Workers’ Compensation Law Judge and the SIF was penalized the Fund for the unilateral suspension. Ultimately the Law Judge scheduled a hearing on the issue of whether Gillan had fraudulently filed claims for workers’ compensation benefits and found that he had not violated Workers' Compensation Law §114-a. The Workers’ Compensation Board affirmed the Law Judge’s decision and both the Department and SIF appealed that ruling.

In response to the Department’s and SIF’s appeal from the Board’s decision, the Appellate Division held that the Board’s decision regarding an alleged violation of Workers’ Compensation Law §114-a “will not be disturbed if substantial evidence supports it” and dismissed the appeal.

The court found it “significant that the Board, which ‘is the sole arbiter of witness credibility’ credited both [Gillan’s] testimony and the extensive medical proof in the record establishing his partial disability.”

The Appellate Division then examined the Department’s and SIF’s remaining arguments, including their contention that the Board erred in not finding that Gillan voluntarily withdrew from the workforce and their challenge to the denial of the Department’s application for full Board review and found them “to be unpersuasive.”

The court also noted that although SIF was provided with an opportunity to have Gillan reexamined by an independent medical examiner, it did not do so and instead chose to have the medical practitioner review Gillan’s medical file and videotaped surveillance footage. In the absence of an actual physical examination, the Worker’s Compensation Board specifically found the resulting report “to be of little weight” and declined to credit it.

NYSUT not a public employer within the meaning of the Taylor Law

NYSUT not a public employer within the meaning of the Taylor Law
Mtr. of Curtis Birthwright and NYSUT, PERB Case U-26457

The Board affirmed the Decision of the Director of Public Employment Practices and Representation (Director) dismissing as deficient Birthwright's improper practice charge alleging that NYSUT violated §§209-a.1(a), (b) and (c) and 209-a.2(a), (b) and (c) of the Public Employees' Fair Employment Act (Act). The Director dismissed the alleged violations of §209-a.1 of the Act as NYSUT is not a public employer within the meaning of the Act and the §209-a.2 allegations as NYSUT is not a public employee organization and owes no duty of fair representation to Birthwright. The Board reiterated that timely service upon other parties is a component of timely filing and that exceptions that have not been timely served will be denied, even if no objection to failure of service is received from the other parties to the proceeding. Birthwright filed exceptions with the Board on January 31, 2006, however, his exceptions were not served on NYSUT until March 2, 2006. The exceptions, not having been timely served on NYSUT, were denied. 

Judicial review – credibility of a witness

Judicial review – credibility of a witness
Danahy v Kerik, 298 A.D.2d 278

Assuming a public employer follows proper procedure, what must be shown to sustain discipline it invoked under Section 75 of the Civil Service Law? Historically the courts have indicated that as long as there is substantial evidence supporting the finding(s) of fact and that the disciplinary penalty imposed did not violate the Pell standard, they will not disturb the decision of the employing body.

Under the Pell standard, the Court will not substitute its judgment as to appropriate disciplinary action for that of the employing body unless the discipline is so harsh as to "shock one's sense of fairness."

What happens, however, when there is an issue concerning the credibility of a witness's testimony? In Danahy, the Appellate Division reaffirmed its long-standing position that it will not overrule a hearing officer who decides to credit one witness's testimony over another's. In other words, the trier of the case's decision as to creditability will prevail unless the challenging party can demonstrate that such reliance was manifestly improper, a difficult task at best.

Disciplinary charges alleging misconduct were filed against a New York City police officer, Kevin Danahy. The hearing officer found Danahy guilty of the charges -- he used excessive force in making an arrest -- and recommended that Danahy be suspended for 20 days without pay. The Police Commissioner accepting the hearing officer's findings and recommendation.

Danahy had testified that he didn't strike or otherwise injure the complainant, but rather he and the complainant merely fell to the ground while the complainant was flailing his arms in an attempt to avoid being handcuffed. The hearing officer, however, rejected Danahy's version of the event and found him guilty of the charges.

Danahy commenced an Article 78 proceeding challenging the ruling, contending that (1) the decision wasn't supported by substantial evidence and that (2) the discipline imposed violated the Pell Standard. The Court said that it would not disturb the hearing officer's determination as to the credibility of witnesses and that the 20-day suspension did not violate the Pell Standard.

Typically the courts will consistently defer to a hearing officer with respect to the determinations concerning the credibility of the witness testifying in a Section 75 disciplinary hearing. Essentially, where the court determines that there is substantial evidence to support the hearing officer's findings and establish guilt, the critical question becomes whether or not the penalty imposed reasonable under the circumstances.

In this instance the Appellate Division held that a suspension for 20 days without pay "did not shock its sense of fairness" and sustained the Commissioner's determination.

Termination of an employee during a probationary period or traineeship

Termination of an employee during a probationary period or traineeship
Dasey v Anderson, CA1, 304 F.3d 148

What are the rules governing the dismissal of a person permanent appointed to his or her position during his or her probationary period?

Are the same principles applied in cases involving an individual who is required to satisfactorily complete a traineeship as a condition of employment?

The Dasey case provides an opportunity to consider these questions.

The individual was dismissed from his position as a probationary state trooper on the grounds that he made a material misstatement in his employment application.

According to the U.S. Circuit Court of Appeals' decision, the individual had satisfactorily completed his training at the Massachusetts State Police Academy and was enlisted as a probationary uniformed member of the Massachusetts State Police [MSP]. In the course of completing his employment application for State Trooper, the trooper stated that he did not use illegal drugs and, during the preceding five-year period, had not "used, possessed, supplied or manufactured any illegal drugs."

On September 14, 1999, while the trooper was still in probationary status, MSP's review of a videotape that had been seized by state troopers while executing a search warrant in an unrelated homicide investigation. The videotape "revealed Dasey and others apparently smoking marijuana." MSP deemed Dasey as having made a false material statement when he denied prior drug use during the application process and he was given a "general discharge" from the MSP effective close of business September 14, 1999.

Dasey sued MSP, claiming it had violated federal and state laws by failing to provide him with a pre-termination hearing. A federal district court judge granted MSP's motion for summary judgment dismissing Dasey's petition, explaining that while in probationary status Dasey had no reasonable expectation of continued employment and thus he had no constitutionally protected property interest in his job. The Circuit Court of Appeals affirmed the District Court's ruling.

Dasey also contended that he was entitled to a hearing was based on a provision in the collective bargaining agreement [CBA] negotiated by the MSP and the union. The CBA included a "bargained-for extension of the right to a pre-termination hearing" to all troopers. In response to this argument the Circuit Court of Appeals held that:

Because neither the collective bargaining agreement nor the MSP's customs and practices provided Dasey with a reasonable expectation of continued employment, he had no constitutionally protected property interest in his job. Absent such an interest, he had no right to a pre-termination hearing.

The general rule in New York State is that a permanent appointee whose employment is subject to the disciplinary provisions set out in Section 75 of the Civil Service Law is entitled to notice and hearing before he or she may be terminated for disciplinary reasons. While serving his or her probationary period, however, an individual permanently appointed to such a position may be dismissed without notice and hearing for any lawful reason after he or she has completed the minimum period of probation and prior to the end of his or her maximum period of probation.

In contrast, if the appointing authority wishes to dismiss a probationary employee before he or she has completed the minimum period of probation, the courts have held that the individual is entitled to notice and a pre-termination hearing.

Another factor might be relevant in cases of probationary employment - traineeship requirements.

In Franks v South Beach Psychiatric Center, Supreme Court, Richmond County, the interrelationship between temporary service, permanent appointment, trainee status and probation was considered.

Franks had been appointed as a Mental Hygiene Therapy Aide Trainee. This appointment involved the satisfactory completion of a one-year training period.

Because of outstanding preferred lists, Franks was initially appointed to his position as a temporary employee pending canvass of the preferred lists and he commenced his "traineeship" in the position. On January 21, 1984, some three months later, Franks was "permanently appointed" to the position, subject to the successful completion of a 52-week probationary period.

On January 2, 1985 Franks was terminated from his position without any hearing because of his alleged failure to satisfactorily complete the probationary period.

Franks claimed that his period of probation had to coincide with his training period and since he had completed his training period in October 1984, he was not a probationary employee at the time of his termination. Accordingly, he argued, he could not be discharged without notice and hearing.

The Appellate Division ruled that there was no merit to Franks' argument. Why? Because, explained the court, under the controlling probationary rules, the probationary period for a trainee is from 26 to 52 weeks or the length of the training period, which ever is longer. As Frank's permanent appointment did not become effective until January 21, 1984, (at which time he was still a trainee) his 52-week probationary period would not end until January 20, 1985. Accordingly, his termination without any hearing on January 2, 1985, was made while he was still a probationary employee and was therefore lawful.

The Franks decision supports the proposition that a traineeship and the probationary period are two different conditions of employment For example, a trainee may be serving as a provisional employee, complete the traineeship, and later take and pass the required examination and subsequently be appointed on a permanent basis.

His or her required probationary period pursuant to Section 63 of the Civil Service Law would commence upon the individual's permanent appointment to the position, notwithstanding the fact that he or she may have already successfully completed the required traineeship.

By the same token, if a traineeship extends beyond the probationary period, the individual may be subject to termination without notice and hearing if he or she fails to complete the traineeship satisfactorily.

Another case that distinguishes between probationary status and traineeship status is Sergeants v Brooklyn Developmental Center, 56 NY2d 628.

In Sergeants, a number of probationary employees were terminated at the end of their respective probationary periods. They sued for reinstatement contending that they had not been provided with the 200 hours of training required by department regulations.

Dismissing their appeal, the Court of Appeals first affirmed the principle that "... the employment of a probationary employee may be terminated at the end of the probationary term without a hearing and without specific reasons being stated."

The court then rejected Sergeants' "traineeship argument," commenting that the mandated training involved would not have addressed the particular demonstrations of poor performance leading to their respective terminations. The evidence in the record, said the court, indicated that the poor performance was related "to fitness for the position" rather than job performance elements that the training provided for by regulation could remedy.

Among the examples of poor performance cited by the court were sleeping on the job, habitual lateness, unscheduled absence, failure to perform overtime assignments and similar poor work habits.

The decision also indicated that the only issue for review was whether the appointing officer acted in good faith in terminating the employee.

The lesson here: Satisfactory completion of probation and satisfactory completion of a traineeship are two different requirements that must be met by the appointee and he or she must satisfy both in order for a permanent appointee to be continued in service.

Where the successful completion of a traineeship is required in order to be continued in service, however, that condition should be communicated to the individual in the examination announcement or in the offer of his or her appointment to the position.

As to the authority for requiring the completion of a traineeship, the rules of the State Civil Service Commission concerning traineeships are set out in 4 NYCRR 4.3 and provide as follows:

Section 4.3 Trainee appointments and promotions. The Civil Service Department may require that permanent appointments or promotions to designated positions shall be conditioned upon the satisfactory completion of a term of service as a trainee in such a position or in an appropriate, lower, training title or the completion of specified training or academic courses, or both. The period of such term of training service shall be prescribed by the department. Upon the satisfactory completion of such training term, and of specified courses if required, an appointee shall be entitled to full permanent status in the position for which appointment was made. Any appointment hereunder shall be subject to such probationary period as is prescribed in [Section 4.5 of] these rules. Also, the employment of such person may be discontinued at the end of the term of training service if his conduct, capacity or fitness is not satisfactory, or at any time if he fails to pursue or continue satisfactorily such training or academic courses as may be required.

Many municipal civil service commissions have adopted similar rules concerning traineeships.

Employees assumed to have knowledge of their employer's policies

Employees assumed to have knowledge of their employer's policies
Gallagher v Commissioner of Labor, 298 A.D.2d 828

Robert J. Gallagher was suspended from his position as a senior insurance examiner after criminal charges were filed against him. The criminal charges alleged that he had purchased and sold stock options in an insurance company that was regulated by his employer, the New York State Department of Insurance.

Gallagher filed for unemployment insurance benefits but his application was denied. He appealed to the Unemployment Insurance Appeal Board. In his appeal Gallagher admitted to his buying and selling stock options in a company that was regulated by the State Department of Insurance but claimed that he did not know that such conduct was prohibited at the time.

Accordingly, he contended, he should not be deemed culpable to the point that he was ineligible for unemployment insurance benefits.

The Board, however, denied Gallagher's appeal seeking unemployment insurance benefits after it determined that he had engaged in disqualifying misconduct. Gallagher sued, challenging the Board's ruling.

In the words of the Appellate Division,

It is well settled that "[a]n employee's apparent dishonesty or failure to comply with the employer's established policies and procedures can constitute disqualifying misconduct"

The Appellate Division said the record established that not only were such transactions were against the employer's policies, -- they were unlawful. Further, the job description of Gallagher's position and his responsibilities required him to understand the Insurance Law.

In effect, the court said that Gallagher, serving as a Senior Insurance Examiner, would be deemed to have knowledge of the relevant Insurance Department policies and the Insurance Law.

Under the circumstances, said the court, substantial evidence supports the Board's decision that Gallagher knew or should have known that his actions were prohibited. It sustained the Commission's decision and dismissed Gallagher's appeal.

Employer's liability for employee’s off-duty conduct

Employer's liability for employee’s off-duty conduct
Perez v City of New York, App. Div., 1st Dept., Docket #1973

In Donahue v Young, Appellate Division, Second Department, Docket 2001-09542, the court held that a municipal employer was not liable under the doctrine of respondent superior[1] when one of its firefighters, while off duty, assisted in extinguishing a fire and in the course providing such assistance, injured a third party. However, the Perez ruling suggests that the courts may view this type of situation differently when the employee in question is a police officer.

In essence, the doctrine "respondeat superior" embraces the concept that the employer is responsible for the actions of its employees.

In the process of making an arrest while off-duty, a New York City police officer, shot and killed an innocent bystander. While not specifically holding that the City was liable for the police officer's action, the Appellate Division did say that the fact that the officer was making an arrest was in and of itself enough to raise a "triable issue" as to whether the City was liable under the theory respondent superior.

The court indicated that "there were substantiated complaints pre-dating the shooting of Perez lodged against the police officer with the Civilian Complaint Review Board." Accordingly, said the Appellate Division, there were issues of fact as to whether the City negligently trained the officer and, or, negligently retained him in its employ.

The Legislature has often provided special benefits for law enforcement and firefighting personnel. For example, Article 14 of the New York State Civil Service Law provide unionized firemen and unionized police the right to interest arbitration regarding terms and conditions of employment whereby other unionized public employees do not. Also, both law enforcement and firefighting personnel enjoy eligibility for special benefits under Sections 207-a and 207-c of the General Municipal Law if they are injured in the course of their employment.

As in Donahue, the police officer was performing a duty he would otherwise perform if officially on duty in the course of which a third party was injured or otherwise harmed. While the Court did not affirmatively decide that the City was culpable, it is clearly stating that there is a legitimate question as to whether the doctrine of respondeat superior applied.

New York State courts have long held that police officers are legitimately held to a higher standard than other public employees for the purposes of discipline. This decision suggests that a law enforcement agency may also be held to a higher standard than other public employers when one of its officers causes an injury to someone while the employee was off duty.

[1] In essence, the doctrine "respondeat superior" expresses the concept that the employer is responsible for the actions of its employees performed in the course of their regular duties.

Public employee must serve in a “safety-sensitive” position in order to be subject to random testing for alcohol or unlawful drugs

Public employee must serve in a “safety-sensitive” position in order to be subject to random testing for alcohol or unlawful drugs

New York City Department of Transportation v R.B., OATH Index #1215/11

R.B., a maintenance worker employed by the Staten Island Ferry Division of the Department of Transportation was served with disciplinary charges after testing positive for marijuana in a random drug test.

R.B. challenged the Division’s subjecting him to a random drug and alcohol test that led to the disciplinary action, contending that as he did not serve in a “safety-sensitive” position as he did not perform work on the ferries or on ferry equipment and thus subjecting him to such testing was an unreasonable search under the Fourth Amendment to the United States Constitution.

OATH Administrative Law Judge Faye Lewis agreed, holding that because R.B. duties were custodial in nature, performed in the ferry buildings and grounds under direct supervision, subjecting him to such random testing violated his rights under the federal Constitution. Judge Lewis sustained R.B.'s motion to dismiss the disciplinary charges filed against him.

The Court of Appeals had approved random drug testing in specific instances such as the testing of law enforcement personnel assigned to narcotics interdiction [see Caruso v Ward, 72 NY2 432]. In contrast, in the Patchogue-Medford Congress of Teachers case, 70 NY2d 57, the court held that reasonable expectations of privacy required probable cause to permit the school district to require probationary teachers to undergo random testing for unlawful drugs.

As the Court of Appeals held in Delaraba v Nassau County Police Department, 83 N.Y.2d 367, “[i]t is well established law that random drug screening constitutes a search and seizure within the meaning of the Federal and State constitutions (National Treasury Employees Union v Von Raab, 489 US 656; Matter of Caruso v Ward, 72 NY2d 432). The guarantee against unreasonable searches and seizures found in both the State and Federal Constitutions (NY Constitution, Article 1, 12; US Constitution, 4th Amend) is designed to protect the personal privacy and dignity of the individual against unwarranted intrusions by the State (Matter of Abe A., 56 NY2d 288; Matter of Patchogue-Medford Congress of Teachers v Board of Education of the Patchogue-Medford Union Free School District, 70 NY2d 57, 64).

“A three-pronged standard of review was articulated in Patchogue-Medford as it related to all probationary teachers eligible for appointment to submit to a urine test for the purpose of detecting potential drug abuse. This Court, invalidating the plan, held that a drug screening plan must be closely scrutinized and permitted only where: (1) the individual's privacy interests are minimal, (2) the government's interests are substantial, and (3) safeguards are in place to ensure that the individual's reasonable expectations of privacy are not subject to unregulated discretion (Patchogue-Medford, supra at 70).”

The general rule in New York State with respect to requiring a "non-security or safety sensitive" public employee to submit to random drug tests is that except where a negotiated agreement or statute authorizes or requires random drug testing, a public employer must have reasonable cause or justified suspicion to require an employee to take an involuntary drug test.

The R.B. decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1215.pdf