Concerning disciplinary action in situations where a disability may be a consideration

Concerning disciplinary action in situations where a disability may be a consideration

Matter of Schlitz v Cavanagh, 14 Misc.3d 1213

The significant issue in the Schlitz case concerned the interplay of two different provisions of the Civil Service Law: serving disciplinary charges against an individual pursuant to Section 75 and Section 72, which is triggered, in cases of an employee’s inability to perform the duties of the position because of non-work related disease or disability.

Essentially Section 72 provides for the placement of an employee on a leave because of a disability, other than a disability resulting from an occupational injury or disease, in the event it is determined that he or she is unable to perform the duties of the position satisfactorily because of that disability.

In Penebre v Dzaluk, 51 AD2d 574, the Appellate Division ruled that §75 charges for misconduct should not have been served on a police officer but that the employer should have proceeded under §72, Ordinary Disability Leave instead. Penebre, said the court, “had performed successfully as a police officer for 13 years before his behavior markedly changed.” He became depressed and inattentive. Under these circumstances, the Appellate Division said that serving Penebre with §75 charges for misconduct was misplaced.

Schlitz also was served with disciplinary charges pursuant to Section 75. Before the conclusion of the disciplinary hearing, however, Schlitz was placed on Section 72 -- non-occupational disability leave -- from his position.

A physician was employed by the Town and asked to determine whether or not Schlitz was suffering from a mental health issue that affected his ability to perform his duties satisfactorily. The physician’s opinion, “given within a reasonable degree of medical certainty,” was that "any past misbehavior on the part of Mr. Schlitz would not have been because of a psychiatric condition."

Ultimately, Schlitz was found guilty of various instances of misconduct and the penalty imposed was demotion.

Schlitz appealed but withdrew his claim regarding the Section 75 determination by conceding that there was substantial evidence to justify the findings of misconduct and the penalty imposed. Instead, Schlitz contended that the Town knew that he was suffering from depression and that the filing disciplinary charges against him under these circumstances amounted to unlawful workplace discrimination against a person with a disability.

In addition, Schlitz argued that his employer was required to present the evidence of his depression in the §75 hearing as a defense or in mitigation of the misconduct charges.

Justice Mayer found that Town was within its rights to conduct the §72 proceeding and suspend the §75 hearing pending the results of Schlitz’s medical evaluation. Further, said the court, once the Town had evidence that the misconduct alleged in the §75 charges and specifications were not due to mental disability, it had the right to move forward under §75.

As to Schlitz’s claim that he was the victim of “unlawful workplace discrimination against a person with a disability,” the court said that the medical evidence in this case was that Schlitz’s acts of misbehavior were not caused by a psychiatric condition. Justice Mayer held that “there is no admissible proof that the petitioner is, or ever was, mentally disabled, and the claim of workplace discrimination perpetrated by the Town by bringing the charges of misconduct against an allegedly disabled person is, therefore, without merit.”

In contrast to discipline/termination procedures, the basic concept underlying the use of Section 72 in disability related situations is the separation/rehabilitation/reinstatement of the employee.

Section 72.1 sets out the procedures to be followed by the appointing authority before an employee may be placed on leave for ordinary disability involuntarily.

Section 72.3 describes the appeal procedures, including recourse to the courts pursuant to Article 78 of the Civil Practice Law and Rules, available to an individual involuntarily placed on disability leave following a Section 72.1 hearing.

Section 72.5 provides an exception to the basic requirement that a Section 72.1 hearing must be concluded before the employee may be placed on Section 72 disability leave involuntarily based on the appointing officer determination that there is a "potential danger" if the employee is permitted to continue on the job.

Daubman v Nassau County Civil Service Commission, 601 NYS2d 14, notes that §50.4(b) of the Civil Service Law allows a civil service commission to disqualify an individual for appointment if the applicant or appointee "is found to have a disability which renders him or her unfit to perform in a reasonable manner the duties of the position in which he or she seeks employment, or which may reasonably be expected to render him or her unfit to continue to perform in a reasonable manner the duties of the position...."

The Daubman decision suggests that a civil service commission should consider the standards imposed by the State's Human Rights Law in determining whether an individual should be disqualified because of a "disability."

Violating workplace rules may disqualify dismissed individual for unemployment insurance benefits

Violating workplace rules may disqualify dismissed individual for unemployment insurance benefits

Smith v Commissioner of Labor, 296 AD2d 803

Violating the employer's policy or work rules concerning sexual harassment may result in the termination of the employee. It may also disqualify the individual for unemployment insurance benefits.

The Appellate Division, Third Department, said that it is clear that an employee who is terminated because he or she "knowing" violated his or her employer's established policy or workplace rules may have been dismissed for "disqualifying misconduct" for the purposes of his or her eligibility for unemployment insurance benefits is concerned. In the Smith case, the Appellate Division, citing the Campbell decision, [In Re Campbell, 271 AD2d 787], demonstrated this principle in a case involving an employee's termination for violating the employer's policy prohibiting sexual harassment.

William F. Smith was fired for violating his employer's policy prohibiting its employees from "sending inappropriate communications by e-mail." When his application for unemployment insurance benefits was rejected by the Unemployment Insurance Appeals Board, Smith sued.

According to the evidence introduced in the course of an unemployment insurance administrative hearing, Smith had sent "questionable e-mail" to his co-employees to notify them of a meeting with the subject line reading "NUDE PICTURES - NUDE PICTURES". Smith's explanation for this: he had used the phrase as a means of gaining the attention of his readers.

About a year later Smith was fired following his sending an e-mail to his co-employees containing a list of "Top Ten" sayings at second jobs. One of the sayings listed by Smith: "Another table dance?"

At the unemployment insurance hearing, Smith's supervisor testified that after this episode he told Smith that "that this language violated the employer's policy against sexual harassment and the misuse of electronic communications." The supervisor also testified that he had told Smith that his repeating such inappropriate conduct would be severely sanctioned. Smith testified at the hearing that he had never received any such warning.

The Appellate Division sustained the Unemployment Insurance Appeals Board's decision that Smith had lost his employment under disqualifying circumstances -- i.e., he lost his employment due to his misconduct.

The court said that there was substantial evidence in the record to sustain the Board's determination and any issue concerning the credibility of the testimony of witness was for the Board to resolve.

Withholding a public employee’s salary increase

Withholding a public employee’s salary increase

Mukhopadhyay v City of New York, 296 A.D.2d 363

An employer tells an employee that he or she will not be given an "annual increment" or other form of a salary advancement or increase. Does this constitute disciplinary action, triggering the employee's right to a pre-determination "notice and hearing?" This was the significant issue in the Mukhopadhyay case.

When the City of New York decided not to award Bimal Mukhopadhyay "a managerial pay increase," Mukhopadhyay sued, contending that he was entitled to a "pre-determination" hearing pursuant to Section 75 of the Civil Service Law.

The Appellate Division rejected Mukhopadhyay's theory that the denial of his "managerial pay increase" by his employer constituted a disciplinary action, finding that:Since Mukhopadhyay had not been demoted, dismissed or otherwise subjected to disciplinary action, his claim that he was entitled to a pre-determination hearing pursuant to Civil Service Law §75(1) is incorrect. 

This ruling is consistent with the Rules of the New York State Civil Service Commission providing for the annual performance rating of certain individuals employed by the State as an employer [4 NYCRR 35].

4 NYCRR 35 requires that appointing authorities prepare an annual summary judgment - satisfactory or unsatisfactory -- of each employee's performance and conduct. This evaluation is then used to determine the individual's eligibility for any annual salary increment otherwise payable and eligibility for promotion. 

In addition, 4 NYCRR 35 requires the appointing authority to notify each of its employees in the competitive and noncompetitive classes of his or her performance rating, provide the employee an opportunity to review his or her rating with the individual's supervisor, and give to each employee whose performance is rated as unsatisfactory a copy of the rating. 

The Rule states that: Any annual salary increment to which an employee who has been rated unsatisfactory is otherwise entitled is to be withheld.

Although the 4 NYCRR 35 describes procedures for appealing an unsatisfactory performance evaluation, nothing in the Rule suggests that such an evaluation is disciplinary in nature and thus it does not seem that an unsatisfactory performance rating should be subject to notice and hearing requirements set out in Section 75.

Provisions similar to 4 NYCRR 35 have been adopted by a number of municipal civil service