Employer did not breach a “contract of employment” when it restored a probationary employee to the employee's former position

Employer did not breach a “contract of employment” when it restored a probationary employee to the employee's former position
Miller v Theodore-Tassy, 2012 NY Slip Op 00940, Appellate Division, Second Department

Margaret Theodore-Tassy’s motion for summary judgment dismissing Nancy Miller’s complaint insofar as asserted against her for alleged “tortious interference with contract“ was denied by Supreme Court. Theodre-Tassy appealed and the Appellate Division reversed Supreme Court’s ruling.

Miller was serving as a probationary assistant principal at a New York City elementary school. Following an alleged incident at the school Miller was discontinued as a probationary assistant principal, and reinstated to her teaching position. The New York City Department of Education [DOE]  then preferred charges against Miller pursuant to Education Law §3020-a. Ultimately Miller was found guilty of certain of the charges and the hearing officer imposed a $10,000 fine.

As to the law involved, the Appellate Division said that “To prevail on a cause of action alleging tortious interference with contract, a plaintiff must establish ‘the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third-party's breach of the contract without justification, actual breach of the contract, and damages resulting therefrom.’"

Here, said the Appellate Division, Theordre-Tassy made a prima facie showing of her entitlement to judgment as a matter of law by submitting evidence demonstrating that DOE did not breach a contract of employment with Miller when it discontinued Miller from her probationary assistant principal position. Further, noted the court, Miller failed to raise a triable issue of fact as to whether the DOE breached an employment contract with her.

It is well settled that "A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law" [see Barry v City of New York, 21 AD3d 551]. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00940.htm

Third Circuit finds lower level public sector supervisor responsible for FMLA violations

Third Circuit finds lower level public sector supervisor responsible for FMLA violations

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

The Third Circuit in Haybarger v. Lawrence, No. 10-3916 (3d Cir. Jan. 31, 2012) held that individual supervisor in the public sector, like their private sector counterparts, could be individually liable for violations of the FMLA separate from, and in addition to, the employer.

Debra Haybarger was employed as an office manager for the Lawrence County Adult Probation and Parole agency, a department in the County Court system.  She reported to William Mancino, the Department Director.  Haybarger suffered from Type II diabetes, heart disease, and kidney problems, which forced her to miss work frequently for medical attention.  Notwithstanding her known medical condition, Mancino repeatedly noted in her annual performance evaluations that she needed to cut down on her absences due to illness.  He also repeatedly questioned why she needed to visit the doctor so often.  Mancino disciplined Haybarger and placed her on probation for six months for conduct demonstrating a lack of leadership.   After securing proper authorization, Mancino subsequently fired Haybarger when, in his opinion, her performance did not improve.

Haybarger sued Lawrence County, the Probation Department, and Mancino for violation of the FMLA.   The federal district court dismissed Haybarger's FMLA claim against Mancino in his individual capacity on the merits after finding that Mancino did not have sufficient authority and control over Haybarger to be considered an "employer" subject to liability within the meaning of the FMLA.  Haybarger appealed the decision of the district court to the Third Circuit.  

To determine whether the district court erred in holding that Mancino was not Haybarger's "employer" for FMLA purposes, the Third Circuit, in a case of first impression, opined that it first had to consider whether the FMLA permits individual liability against supervisors in public agencies.   Because liability for FMLA violations is limited to an "employer" as defined by the Act, the Court began its analysis with the FMLA definition of "employer"in 29 U.S.C. Sec. 2611(4)(A)(i)-(iii):

In general.  The term "employer"

(i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;

(ii)  includes--

(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and

(II) any successor in interest of an employer;

(III) includes any "public agency"  as defined in section 3(x) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(x)).*

The Court also noted that individual supervisor liability for FMLA violations is codified in the U.S. Department of Labor FMLA implementing regulations, 29 CFR 825.104(a), (d).  As additional support, the Court referenced the fact that the FMLA definition of "employer" is materially identical to the FLSA definition, and that the Third Circuit has found individual liability for FLSA violations, including liability for lower level supervisors.

The Third Circuit found not reason to distinguish between public agencies and private sector employers under the FMLA insofar as individual liability is concerned.  After recognizing a split in the Circuits on the issue, the Third Circuit joined the Fifth and Eighth Circuit to find individual public sector liability for FMLA violations.  In so doing, the Third Circuit rejected decisions of the Sixth and Eleventh Circuit finding no individual public sector supervisor liability for FMLA violations.  The split in the circuits rest on highly technical interpretations of the structure of the FMLA's "employer" definition.   The Third Circuit found that, because the definition of "employer" includes "public agencies," and Congress provided that an "employer" may include individuals, "it plainly follows that an individual supervisor at a public agency may be subject to liability."   

The Court went on to find that Mancino was Haybarger's "employer" under the FMLA.  Here again, the FMLA defines an "employer" as "any person who acts, directly or indirectly, in the interest of an employer to any of the employee's of such employer."  Citing FLSA case law as support, the Court opined this meant that an individual is subject to FMLA liability when he or she exercises "supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation while acting in the employer's interest.  Applying the "economic reality" test, whether a person functions as an employer depends on the totality of the circumstances rather than on "technical concepts of the employment relationship," including: (1) whether the individual had the power to hire and fire the employee; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.

Here, the Court found that Mancino exercised sufficient control over Haybarger's employment on behalf of Lawrence County to be her employer.  The fact that Mancino lacked final authority to terminate Haybarger did not alter the situation where, as here, he served has her immediate supervisor, he conducted performance reviews, issued discipline, and recommended her ultimate termination. 

Mr. Bosland Comment:     In the private sector, courts have consistently found that individual managers and supervisor acting on behalf of their employer may be individually liable for violating an employee's FMLA rights.  The federal circuit courts have split on the issue in the public sector based on highly technical textual and contextual interpretations of the FMLA's definition of "employer."  The split in the circuits on the issue will likely be resolved one day by clarification by Congress or a decision by the U.S. Supreme Court. 

Where it applies, an individual supervisor may be liable even though they are not a very high level official or have final authority over the employee, provided they exercised some control over the employee and was at least partially responsible for the violation.  To be liable, it is not required that the manager or supervisor intend to violate the employee's FMLA rights.  A manager or supervisor may be personally liable for even inadvertent FMLA violations.   

Supervisors and managers with FMLA responsibilities would be well-advised to ask their employers to provide them with periodic FMLA training to ensure legal compliance.  Employee's should also inquire whether the employer's insurance policies cover the considerable legal costs of defending an FMLA lawsuit, including the cost of any settlement or adverse judgment.  If not, you should either demand coverage (in writing), secure it on your own, or rethink your continued employment as a manager or supervisor with that organization.  The legal defense of an FMLA lawsuit alone could cost in excess of $100,000 dollars, let alone the increased costs of any settlement or adverse judgment.  Such costs would bankrupt most supervisors. 

To avoid FMLA lawsuits and retain good managers and supervisors, FMLA-covered employers should provide periodic FMLA training and secure insurance to cover the defense and resolution of FMLA claims filed against individual supervisors.   

  

* NYPPL comments: In Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) [64 LW 4167], the Supreme Court observed that Congress cannot nullify the Eleventh Amendment by adopting laws pursuant to the Indian Commerce Clause. The Supreme Court then said that the Indian Commerce Clause was indistinguishable from the Interstate Commerce Clause. The Supreme Court indicated it was overruling its decision in Pennsylvania v Union Gas, 491 US 1, an "Interstate Commerce Clause case," on the grounds that it had been "wrongly decided." As the FMLA, as was the FLSA, was enacted under color of the Interstate Commerce Clause [29 USC 216(b)], presumably its provisions are not controlling absent the State’s "waiving its immunity" and thereby consenting to its being sued by its employees in a federal court. 

The opinion of the Third Circuit is available at the following link:  http://www.ca3.uscourts.gov/opinarch/103916p.pdf

The Third Circuit covers New Jersey, Delaware, Pennsylvania, and the U.S. Virgin Islands. 

Commissioner of Education does not have jurisdiction to consider classified service employee’s claims of alleged out-of-title work assignments

Commissioner of Education does not have jurisdiction to consider classified service employee’s claim of alleged out-of-title work assignments

Appeal of Robert Troeller from action of the New York City Department of Education regarding out-of-title work, Decisions of the Commissioner of Education, Decision #16,326

The New York City Department of Education [DOE] assigned school plant managers to supervise private sector contract employees. Robert Troeller, a plant manager, appealed, contending that requiring plant managers to directly supervise private sector contract employees constituted out-of-title work in violation of Civil Service Law §61(2). Troeller asked the Commissioner to direct the DOE to discontinue the practice.

The Commissioner dismissed Troeller’s appeal “for lack of subject matter jurisdiction.”

The Commissioner pointed out that Civil Service Law §17 vests jurisdiction to administer the provisions of the Civil Service Law with respect to the offices and employments in the Classified Service* of a political subdivision of the State in the responsible civil service commission, personnel officer or other form of civil service administration.** In the case of the City of New York, the City is empowered to administer the Civil Service Law through whatever form of administration it chooses to prescribe in its City Charter.

Under Civil Service Law §35(g), the Commissioner of Education has jurisdiction over the qualifications for appointment and duties and responsibilities of individuals employed in titles involving teaching and the supervising staff of school districts; i.e., individuals employed in positions in the Unclassified Service.

As the plant managers involved were not serving in positions that had been certified by the Commissioner of Education as being in the Unclassified Service pursuant to §35(g) of the Civil Service Law or otherwise so jurisdictionally by law, such positions were position in the Classified Service and the Commissioner did not have jurisdiction to consider the out-of-title claims advanced by the incumbents of those positions.

The Commissioner declined to exercise jurisdiction to review the matter pursuant to §310 of the Education Law and dismissed Troeller's appeal.”

* N.B. All positions in the classified service are in the competitive class unless placed in a different jurisdictional class by the responsible civil service commission or by statute. The Classified Service consists of four jurisdiction classes: the competitive class [CSL §44], the noncompetitive class [CSL §42], the exempt class [CSL §41] and the labor class [CSL §43].

** See, in particular, Civil Service Law §22.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16326.html

Failure to satisfy all required procedural elements in an appeal to the Commissioner of Education is fatal to the Commissioner having jurisdiction to consider the matter

Failure to satisfy all required procedural elements in an appeal to the Commissioner of Education is fatal to the Commissioner having jurisdiction to consider the matter

Appeal of Brian M. Kelty seeking the removal of district clerk Concetta Carr, Decisions of the Commissioner of Education, Decision #16,325

Alleging numerous irregularities in the conduct of the election of various candidates seeking to become members of the school board, Candidate Brian M. Kelty claimed that any discrepancy in the recording of votes was due to district clerk’s incompetence and/or the mechanical failure of the voting machines.*  

The Commissioner dismissed the appeal, noting that Kelty had failed to join necessary parties; i.e., any  party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.

In this instance the annulment of the election results as demanded by Kelty would affect the four winning candidates. Accordingly, they are necessary parties to the appeal.

Also, said the Commissioner, “although Carr was served with the petition in her capacity as respondent’s district clerk, she was not named as a respondent in either the notice of petition or the petition itself.” The Commissioner explained:

1. Mere service of the petition does not accomplish joinder of the respondent. 

2. The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office.

3. A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent.

In light of this, said the Commissioner, “I need not consider the parties’ remaining contentions” and dismissed Kelty’s appeal.

* Kelty also challenged “the impartiality” of the district clerk and several trustees on the board because their names appeared on another candidate's petition and alleging that this constituted “improper electioneering.”

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume51/d16325.html

Both the New York City’s Conflicts of Interest Law and §§3020 and 3020-a of the Education Law apply to a New York City educator

Both the New York City’s Conflicts of Interest Law and §§3020 and 3020-a of the Education Law apply to a New York City educator

Rosenblum v New York City Conflicts of Interest Bd., 2012 NY Slip Op 00854, Court of Appeals

The Court of Appeals held that the Conflicts of Interest Board of the City of New York (COIB) is authorized to enforce the Conflicts of Interest Law set out in the New York City Charter §§2600-2607, with respect to a public servant who is also subject to disciplinary action pursuant to §§3020 and 3020-a of the Education Law.*

Accordingly, said the court, the Appellate Division had improperly barred the City's Office of Administrative Trials and Hearings (OATH) from proceeding with an administrative trial against a tenured educator employed in the City's public school system.

COBI alleged that the educator had violated §2604(b)(3) of the Conflicts of Interest Law, which prohibits a public servant from "us[ing] or attempt[ing] to use his or her position as a public servant to obtain any . . . private or personal advantage, direct or indirect, for the public servant or any person or firm associated with the public servant.” It served the educator with a copy of its petition asking OATH to find that the educator had, in fact, “violated the law and to impose a $10,000 fine (the maximum allowed at the time) and grant such further relief as might be just and proper.”

The educator asked OATH to dismiss COBI’s petition, contending that “Education Law §§3020, 3020-a and 2590-j (7),** as supplemented by the collective bargaining agreement between the New York City Department of Education and his union, the Council of Supervisors and Administrators, Local 1, AFSA, AFL-CIO (CSA), was the exclusive method for disciplining a tenured pedagogue.”
 

Noting that §2603(h)(2) of the Conflicts of Interest Law requires COBI to refer an alleged ethics violation to the public servant's employing agency before holding a hearing, and for that agency to consult with COBI before making a final decision, the court said “This certainly makes sense as the employing agency may not otherwise be aware of the circumstances underlying the alleged ethics violation and is free to pursue a wider range of penalties for misconduct than [COBI,]”

However, said the court, this requirement does not mean the COBI is precluded from proceeding if the agency decides not to pursue disciplinary charges against the public servant for an ethics violation. Further, noted the court, §2603(h)(6) of the Conflicts of Interest Law specifically provides that COBI “is not prevented from acting where the employing agency, in fact, decides to terminate or otherwise discipline a public servant.”

As COBI, explained the court, may still act when the employing agency has imposed discipline, there is no basis for interpreting the Conflicts of Interest Law as forbidding COBI from acting where the agency has elected not to pursue disciplinary action, especially since such a decision does not connote vindication.

* The court decided that the Conflicts of Interest Law was not inconsistent with §§3020 and 3020-a of the Education Law and did not address the educator’s argument that “in the event of a conflict” §§3020 and 3020-a would necessarily trump the Conflicts of Interest Law.

** Presumably the same would be true with respect to individuals subject to disciplinary action pursuant to §75 of the Civil Service Law or disciplinary procedures negotiated pursuant to Civil Service Law §76.4, as the court noted that over 90% of the City's workforce “is entitled to the civil service protections afforded by §3020-a or similar provisions of State law.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00854.htm

More on the liquidation of leave credits upon separation from service

More on the liquidation of leave credits upon separation from service

As a follow-up to a NYPPL posting replying to an inquiry concerning the liquidation of leave accruals upon separation,* a reader asks: Is an employee terminated for cause entitled to payment of accrued vacation leave credits?

Among the decisions in NYPPL’s files addressing this issue is Rubinstein v Simpson, 109 AD2d 885.

In Rubinstein the Appellate Division said no, explaining that in the absence of a statutory or contractual right to such payment, the employer does not owe the dismissed individual  any payment for his or her unused vacation leave accruals upon his or her termination for cause.

The State's Attendance Rules for the Classified Service (4 NYCRR 30.1), which apply to employees of the State as the employer, provides that "No employee who is removed from State service as a result of disciplinary action, or who resigns after charges of incompetence or misconduct have been served, shall be entitled to vacation credits...."

A number of municipal civil service commissions have adopted a similar rule. According to Rubinstein, such a rule is not necessary. Unless there is some statutory or contractual right to such payment, the employer may lawfully refuse to liquidate the dismissed employee's leave accruals.

However, under certain circumstances such payment to an individual terminated from service is required. For example, when an employee was earlier refused permission to use leave credits “because of the demands of work” and was later terminated, the Appellate Division ruled that the employee was entitled to payment for his unused leave accruals. (See Clift v City of Syracuse, 45 AD2d 596.)

* See http://www.publicpersonnellaw.blogspot.com/2012/02/liquidation-of-leave-credits-upon.html