The provisions in a “memorandum of understanding” that are limited to applying to “employees” do not apply to a “retired employee”

The provisions in a “memorandum of understanding” that are limited to applying to “employees” do not apply to a “retired employee”

Derosa v Dyster, 2011 NY Slip Op 09363, Appellate Division, Fourth Department

Patricia Derosa, a retired employee the City of Niagara Falls, sued the City in an effort to compel it to provide her with “either post-employment health insurance coverage or opt-out payments in lieu of such coverage, contending that she was entitled to such benefits pursuant to the terms of a Memorandum of Understanding [MOU] between the City and the Union.

The Appellate Division ruled that Derosa, as a retired employee, was not eligible to elect the “opting out” provision, explaining that the MOU gave qualified employees a choice of either participating in the health care plan or opting out of that plan. However, said the court, although the MOU permitted retirees to participate in the health care plan upon retirement under the same terms and conditions as employees, it did not contain a similar "opt-out provision" for retirees.

Pointing out that the opt-out paragraph set out in the MOU specifically stated that qualified employees could elect to opt-out of the health care plan, the Appellate Division held that Derosa, as a retiree, and thus no longer an employee, was entitled to enroll in the health care plan at no cost to her but could not elect to "opt-out."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09363.htm

Agency or insurance carrier must provide substantial evidence to rebut presumptions set out in Volunteer Firefighters’ Benefit Law as to cause of death

Agency or insurance carrier must provide substantial evidence to rebut presumptions set out in Volunteer Firefighters’ Benefit Law as to cause of death
Machajewski v Town of Cambria, 89 AD3d 1175

Gerald A. Machajewski, a volunteer firefighter for the Town of Cambria, Niagara County, collapsed while responding to a call and died shortly thereafter.

It was determined that Machajewski suffered an acute coronary artery thrombosis, and the Workers' Compensation Board, applying the rebuttable presumptions contained in Volunteer Firefighters' Benefit Law §§44 and 61*, ultimately approved a claim for workers' compensation death benefits by Machajewski’s widow.

When the Town’s and its workers' compensation carrier’s appealed the Board’s determination, the Appellate Division said that there is no dispute that a heart or coronary artery condition caused Machajewski's death and thus his widow would entitled to death benefits if that condition "resulted from the duties and activities in which [decedent] was engaged" (Volunteer Firefighters' Benefit Law §61[1]).

As the record indicated that Machajewski had never been diagnosed with a heart condition and had been examined by his physician just weeks before his death and was found to be in good health, the Appellate Division ruled that “Inasmuch as that ‘evidence permits reasonable inferences to sustain the finding of the [B]oard that the death was due to unusual strain and effort’ attendant to [Machajewski’s] duties, the Town was obliged to provide substantial evidence to the contrary in order to defeat his widow’s application.

The court held that “the Board properly determined that claimant's demonstration of entitlement to death benefits had not been rebutted.”

* Presumptions regarding death or disability due to disease or malfunction of his or her heart or coronary arteries suffered by a volunteer firefighter alleged to have resulted from the performance of the duties and activities in which the volunteer fireman was engaged

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2011/2011_07765.htm

A party's demand to arbitrate a grievance must survive a two-prong test: is the subject of the dispute arbitrable and, if so, did the parties agree to do so

A party's demand to arbitrate a grievance must survive a two-prong test: is the subject of the dispute arbitrable and, if so, did the parties agree to do so

Arbitration between the Town Of Saugerties and the Town of Saugerties Policeman's Benevolent Assn., 2012 NY Slip Op 00458, Appellate Division, Third Department
 

The Town of Saugerties challenged the Supreme Court's denial of its CPLR 7503 petition to stay the arbitration of a grievance filed by the Town of Saugerties Policeman's Benevolent Association [PBA] concerning an order that required a police officer to work in excess of an eight-hour tour.

The Collective Bargaining Agreement (CBA) stated, among other things, that the Town "agrees to comply with the requirements of §971 of the Unconsolidated Laws of New York."*

Courts, said the Appellate Division, determine arbitrability according to a two-prong test:

1. May the parties arbitrate the dispute and, if so,

2. Whether the parties in fact agreed to do so.

The Town contended that demand to arbitrate fails both tests as the resolution of the dispute:

1. Requires the application or interpretation of the terms of a statute and public policy will not permit an arbitrator to apply or interpret a statute, and

2. The parties did not agree to arbitrate the application or interpretation of the statute at issue here.

The Appellate Davison decided that neither of the Town’s arguments had merit, explaining that the CBA incorporates §971 by reference, making the language of the statute a substantive provision of the CBA.

Further, said the court, the Town had identified any public policy that would preclude the arbitrator from interpreting such language set out in the CBA.

In addition, the court noted that the CBA defines disputes as "[a]ny grievance arising concerning the interpretation or application of the terms of this contract or the rights claimed thereunder and/or working conditions."

As the dispute underlying the PBA’s grievance concerns overtime, which is clearly a working condition, clearly one that the parties intended to arbitrate the Appellate Division concluded that Supreme Court correctly granted the PBA’s cross motion to compel arbitration and dismissed the Town’s petition.

* §971 of the Unconsolidated Law, in relevant part, provides that police officers shall not be assigned to tours of duty exceeding eight consecutive hours of each consecutive 24 hours, with certain exceptions. See, also,  Police Asso. of the City of Mt. Vernon v City of Mt. Vernon, 279 A.D.2d 561, posted on the Internet at: http://caselaw.findlaw.com/ny-supreme-court/1055483.html

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00458.htm

Enforcing disciplinary settlement agreements

Enforcing disciplinary settlement agreements
Lyons v Whitehead, 2 AD3d 638

The Appellate Division's decision in the Lyons case demonstrates the importance of making certain that the terms and conditions of a disciplinary settlement agreement clearly indicate the expectations of the parties.

An employee at the Letchworth Developmental Disabilities Service, and the Director of Letchworth, had entered into a disciplinary settlement agreement that provided that the employee would participate in a treatment program to treat her abuse of prescription drugs. The settlement required the employee to follow the program's attendance requirement, and to complete the program.

The agreement also provided that the employee would be placed on "general probation status" for one year, and that her employment could be terminated for a violation of her probation without any further hearing "except for time and attendance infractions".

The employee failed to attend a scheduled "medication course." The Director viewed this as a breach of the Settlement Agreement and terminated the employee's employment. Acting on behalf of the employee, the Civil Service Employee's Association, Inc., sued. They asked for a court order reinstating the employee to her position. CSEA argued that the employee’s failure to attend the medication course was a "time and attendance infraction" and thus she could not be summarily terminated under the terms of the Settlement Agreement.

Although the Supreme Court directed that the employee be restored to her employment, the Appellate Division reversed and remanded the case to the lower court to determine whether the employee’s failure to attend the "medication course" was a "time and attendance infraction" under the Settlement Agreement.

The Appellate Division ruled that "[b]ecause the Settlement Agreement is a contract between the parties, it must be construed according to ordinary contract law." Accordingly, the court must "determine the intention of the parties as derived from the language employed in the contract", and it "should strive to give a fair and reasonable meaning to the language used," citing Abiele Construction v New York City School Construction Authority, 91 NY2d 1.

It is clear that the appellant could terminate the employee's employment for a violation of her probation, "except for time and attendance infractions." Was employee’s absence from the "medication course" a breech of the Settlement Agreement?

The Director maintained that attending the medication course "was part of the treatment program" that the employee agreed to attend as part of the Settlement Agreement. CSEA, on the other hand, argued that it was "a mandatory course for all employees working at [the employee’s]salary grade and title for recertification to perform the duties of dispensing medication to patients" and thus her absence was a "time and attendance" problem excluded under the Settlement Agreement.

The court decided that the nature of the medication course could not be determined from the record and therefore it could not decide whether or not the employee’s failure to attend it was a "time and attendance infraction" or a breach of the disciplinary settlement agreement.

Thus, said the court, "the matter must be remitted to the Supreme Court, for a hearing on the question of whether the medication course was the same as the treatment program, and if not, whether the employee's  absence falls within the category of "time and attendance infractions." The Appellate Division said that the lower court "had to make a new determination" based on its answer to these questions.

The basic idea underlying the Lyons decision is that the court must interpret and apply the terms set out in a disciplinary settlement agreement precisely. The decision in Taylor v Cass, 122 A.D.2d 885, illustrates this point.

A former County employee, won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a six-month disciplinary probation.

The disciplinary settlement provided that the County could terminate the employee without any hearing if, in the opinion of the employee’s superior, the employee’s job performance was "adversely affected by his intoxication on the job during the next six months."

The employee, while serving this six-month disciplinary probationary period, was terminated without a hearing after what his supervisor described as the employee’s "failing to give a fair day's work" and "sleeping during scheduled working hours".

The employee challenged his dismissal and won reinstatement with back pay. Why? The Appellate Division decided that the employee’s dismissal was improper because he was not summarily terminated for the sole reason specified in the disciplinary settlement agreement: intoxication while on the job.

The advancement of two equally plausible and reasonable interpretations of the CBA provision at issue bars a court from granting a motion for summary judgment

The advancement of two equally plausible and reasonable interpretations of the CBA provision at issue bars a court from granting a motion for summary judgment

Williams v Village of Endicott, 2012 NY Slip Op 00276, Appellate Division, Third Department

The collective bargaining agreement (CBA) in effect between the Village of Endicott and the collective bargaining representative for police officers provided that at the time the plaintiff police officers retired from the Village’s police department in 1998, the Village  "shall keep in full force and effect medical coverage and hospital coverage for each member of the bargaining unit, with benefits to be of a value at least equivalent to those presently in force[,] subject to the following conditions:

All unit members retiring during the terms of this agreement agree that subsequent to their retirement, and in consideration of [defendant's] agreement to continue their health insurance coverage, they will continue to pay a contribution toward their annual health insurance premium and such contribution shall be a sum of $500.00 per annum for family coverage, and a sum of $200.00 per annum for individual coverage."*

When Williams became eligible for Medicare Part B coverage in 2007, he was informed that the health insurance provided by Village would not cover services that would be covered under Medicare Part B, even if he failed to enroll in the program.**

As a result, Williams enrolled in Medicare Part B*** and was charged a separate premium by Medicare, which was deducted from his Social Security benefits. When Village refused [William's] request for reimbursement, Williams sued, seeking a summary judgment that the CBA required the Village to cover the costs associated with his Medicare Part B coverage. The Village also moved for summary judgment dismissing Williams' petition. Supreme Court denied both motions and both Williams and the Village appealed.

The Appellate Division said that "In determining the obligations of parties to a contract, courts will first look to the express contract language used to give effect to the intention of the parties, and where the language of a contract is clear and unambiguous, the court will construe and discern that intent from the document itself as a matter of law." Further, the court said that “Whether a contract is ambiguous is a question of law to be resolved by the court.”

Although the Appellate Division found that there was “an ambiguity as to whether Medicare Part B coverage is a component of the ‘medical coverage and hospital coverage’ that [the Village] agreed to provide to retirees under the CBA,” it also said that “On the other hand, the operative language could be read to require defendant to continue to provide and pay for a defined level of health insurance benefits — i.e, those in place at the time of retirement — without resort to any particular insurance plan or provider, subject to [William’s] $500/$200 annual contribution.”

Concluding that the parties have advanced two equally plausible and reasonable interpretations of the CBA provision in question, thereby evidencing an ambiguity that requires consideration of evidence outside the four corners of the CBA relevant to the parties' intent.”

As the scant extrinsic evidence contained in the record did not dispositively establish the scope of health insurance coverage contemplated by the parties, the Appellate Division ruled that the matter was not amenable to summary disposition.

* The court noted that the interpretation of this provision was previously before it when the Village attempted to increase the annual contributions that retirees were required to pay towards their health insurance premium (Hudock v Village of Endicott, 28 AD3d 923 [2006]). In Hudock the Appellate Division found that "the language of the CBA unambiguously provides that for all times subsequent to the retirement of [the] plaintiffs and other officers who retired while the 1996-1999 CBA was in effect, those retirees are only required to pay defendant a contribution of $500 or $200 toward their annual medical insurance 'in consideration of [Village's] agreement to continue their health insurance coverage.'"

** See §167-a of the Civil Service Law with respect to the reimbursement of Medicare premiums by the State as the employer for its retired employees and NYSHIP participating employers on behalf of their retirees. A brief history of the events leading to the enactment of §167-a is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html

*** Enrollment in Medicare is not required by law but if Williams refused to do so, the Village’s insurance carrier would not pay any benefits otherwise payable by Medicare, in effect forcing Williams and similarly situated retirees to enroll in Medicare or forfeit most of their health insurance benefits.

The Williams decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00276.htm

Finding there is a qualified privilege with respect to statements made after a whistle-blowing event defeats an employee's claim of slander

Finding there is a qualified privilege with respect to statements made after a whistle-blowing event defeats an employee's claim of slander

Cusimano v United Health Servs. Hosps., Inc., 2012 NY Slip Op 00271, Appellate Division, Third Department

Following a report from a member of the staff that a physician was storing pharmaceutical drug samples in the physician's office in violation of the employer’s policy, the office of the physician was searched and 114 sample packets, totaling 798 tablets, of the drug Provigil, a controlled substance, was found in an unlocked filing cabinet in the physician’s office. This constituted a violation of the employer’s policy barring the storage of Provigil in the offices of its physicians.

When the search was completed, the employees performing the search confiscated the Provigil. They then allegedly reported their findings to other medical office assistants working at the facility and commented that the physician “would likely be arrested and dismissed.

The physician filed a lawsuit against the employer and certain of its employees alleging slander per se, the intentional infliction of emotional distress, prima facie tort and trespass. Supreme Court dismissed the physician’s complaint and the physician appealed.

The Appellate Division said that Supreme Court properly determined that the statements of the employees to co-workers were protected by a qualified privilege, noting that "A qualified privilege arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest.”

Significantly, the court said that such common interest “may include statements to fellow employees on a subject concerning the employer.”

In this instance the employees’ statements to which the physician objected “were made solely to their co-employees,” all of whom were collectively responsible for the functioning and proper operation of the facility.

As all the employees involved had a common interest in knowing whether pharmaceuticals were being stored in violation of the employer’s policy and the implications with respect to physicians storing such items in their  offices, the Appellate Division found that the employees being sued “demonstrated that the statements were protected by a qualified privilege.”

This, said the court, shifted the burden to prove that the employees "acted out of personal spite or ill will, with reckless disregard for the statements' truth or falsity, or with a high degree of belief that their statements were probably false" to the physician.

Although the physician said that certain of the employees involved “harbored ill will” as a result of certain events that transpired in the days prior to the search, the Court noted that "spite or ill will refers not to [a] defendant's general feelings about [a] plaintiff, but to the speaker's motivation for making the defamatory statements [, and] a triable issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication" of the offending statement.

The employees conducting the search did based upon first-hand information from another worker that she observed pharmaceutical samples being delivered to physician’s office Their statements to other employees following the discovery of the samples of Provigil in the physician’s office were “made in furtherance of the common interest” and thus were protected by the privilege.”

The decision states that even if the individuals disliked the physician or possessed some ill will towards the physician, the physician failed to make an evidentiary showing that the employees involved "were motivated by malice alone in making the statements" nor was there any representation that the employees involved “knew that their statements describing Provigil as a narcotic* were false or that they acted with reckless disregard as to whether [such statements] were false.”

Indeed, said the Appellate Division,  “the proof established that the terms ‘narcotic’ and ‘controlled substance’ are often used interchangeably throughout the medical community, and that the [employees] neither knew nor understood the difference.

Accordingly, said the court, the physician failed to demonstrate a triable issue regarding the existence of constitutional or common-law malice sufficient to defeat the qualified privilege and the privileged nature of these statements likewise precludes liability against the employer under the theory of respondeat superior.

The Supreme Court’s ruling was affirmed by the Appellate Division.

* Although all narcotics are controlled substances, not all controlled substances are narcotics.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00271.htm