Loss of employment by operation of law does not constitute an “adverse employment action” within the meaning of civil rights laws

Loss of employment by operation of law does not constitute an “adverse employment action” within the meaning of civil rights laws

Brown v. City of Syracuse, USCA, Second Circuit, Docket No. 10-0529-cv

Curtis Brown, an African-American former City of Syracuse police officer, was suspended with pay pending investigation of an incident and ultimately suspended without pay and terminated. *

Brown filed a civil rights complaint, contending that the City of Syracuse unlawfully discriminated against by treating him more severely than white officers who committed acts of an equal or more serious nature. 

The Circuit Court of Appeals, noting that Brown had subsequent guilty plea to certain criminal charge, ruled that he could not prove an “adverse employment action” for any of the measures taken by by the City after his guilty plea as his plea of guilty resulted in his automatic termination in accordance with New York Public Officers Law §30(1)(e).**.

Further, as a matter of law, the court ruled that Brown’s suspension with pay pending the investigation did not, under the circumstances, amount to an adverse employment action.

Citing Joseph v. Leavitt, 465 F.3d 87at 91, the Circuit Court explained that “administrative leave with pay during the pendency of an investigation does not, without more, constitute an adverse employment action” as “an employee does not suffer a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner.”***

Brown also claimed discrimination because he was deprived of “professional courtesy” that police sometimes extend to their fellow officers.

The Circuit Court disagreed, holding that his claim “fails under the rationale of Diesel v. Town of Lewisboro, 232 F.3d 92 (2d Cir. 2000), which held that a police officer was not entitled to the ‘professional courtesy’ of having his fellow police officers look the other way or otherwise work on his behalf to mitigate criminal charges.”

The Court of Appeals, after considering Brown’s other arguments, found them without merit and affirmed the District Court’s granting the City of Syracuse’s motion for summary judgment.

* On December 7, 2005, a disciplinary arbitrator reviewed Brown’s termination and found “just cause” existed to terminate Brown effective July 5, 2000.

** Public Officers Law §30(1)(e) provides that a public office becomes vacant upon the incumbent’s conviction of “a crime involving a violation of his oath of office" and a plea of guilty is deemed a conviction. Police officers are “public officers” with in the meaning of §30(1)(e).

*** N.B. The court, however, cautioned that it has “noted that our rule is not an absolute one, and that a suspension with pay may, in some circumstances, rise to the level of an adverse employment action.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/d7c9b26b-cefe-4365-9338-fef7922cb934/2/doc/10-529_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d7c9b26b-cefe-4365-9338-fef7922cb934/2/hilite/

Termination recommended as the penalty to be imposed on employee found guilty of theft of employer’s funds

Termination recommended as the penalty to be imposed on employee found guilty of theft of employer’s funds

NYC Department of Education v Hendricks, OATH Index #153/12

A custodian engineer [custodian] employed by the New York City Department of Education was charged with theft of funds from the custodial bank account, and fraud.

OATH Administrative Law Judge Ingrid M. Addison sustained the charges based on testimony from the director of school facilities, who was the custodian’s supervisor, an investigator with the Special Commissioner of Investigation for the New York City School District, and documentary evidence which included copies of checks drawn against the custodial account which the custodian had issued to himself and others.

Judge Addison found that the evidence established that the employee withdrew over $17,000 from the custodial bank account for non-school expenses, including tuition fees for his children’s private school, life insurance premiums and a political contribution. The evidence revealed that the individual had forged endorsements on checks and accepted kickbacks from others he had hired.

The employee, said the ALJ, also violated the Chancellor’s regulations and the City Conflicts of Interest Law by hiring and supervising his sister. ALJ Addison noted that the funds the custodian stole were intended to enhance the learning environment of children by ensuring that the school was safe and clean.

Because a custodian has unfettered access to the custodial bank account solely for those uses, the position demands someone whose honesty is beyond reproach and who is extremely ethical. Accordingly, for the proven charges, ALJ Addison recommended that respondent be terminated from his employment.  

The decision is posted on the Internet at:   

http://archive.citylaw.org/oath/12_Cases/12-153.pdf

Revised APPR Provisions New York State Teacher and Principal Evaluation 2012-13

Revised APPR Provisions New York State Teacher and Principal Evaluation 2012-13

Source: New York State Department of Education 

A Summary of revised APPR provisions captioned "New York State Teacher and Principal Evaluation 2012-13 and Beyond", and reflecting the anticipated changes resulting from enacting amendments to Education Law §3012-c proposed in February 2012 in the Executive Budget and the "Settlement of Litigation," has been posted on the Internet at:

http://engageny.org/wp-content/uploads/2012/03/nys-evaluation-plans-guidance-memo.pdf


N.B.: The posting states that "To the extent that the language in this memo differs from the regulatory language ultimately adopted to conform to the statute, the language in the Regulation controls."

Disclosing FMLA medical information to supervisors, human resource personnel and union representative

Disclosing FMLA medical information to supervisors, human resource personnel and union representative

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.

Joanne Holland was employed as a nurse at the Dallas Veterans Affairs Medical Center ("Dallas VA").  She requested FMLA leave for a variety of stress-related ailments incident to her filing an EEO complaint against her supervisor, Cathy Clellan.  Holland supported her request for FMLA leave with medical documentation.  Holland made the request to Associate Director of Patient Care Services Sandra Griffin.  Griffin notified Dallas VA personnel, including McClellan, of Holland's request for FMLA leave. 

Holland had asked that Griffin not be involved with her request for FMLA leave.  It was subsequently determined that Griffin, as her immediate supervisor, had to approve of Holland's request for FMLA leave.  Holland subsequently submitted her FMLA leave request to McClellan.  Griffen held two telephonic conferences with Holland and other members of the Dallas VA staff to discuss Holland's request, which was approved. 

Holland sued, alleging that the disclosure of her medical information to McClellan and other Dallas VA personnel violated the FMLA's medical confidentially requirements of 29 CFR 825.500(g).  In relevant part, the regulation states that "[r]ecords and documents relating to certifications, recertifications or medial histories of employees or employees' family members, created for purposes of FMLA, shall be maintained as confidential medical records."   The federal district court disagreed.

The court initially noted that it is not entirely clear whether an aggrieved individual can file a civil lawsuit for violation of the medical confidentially provisions.  Assuming, without deciding that a private right of action does exist, in awarding summary judgment in favor of the Dallas VA, the court found that Holland had failed to establish a violation.  While the Dallas VA did release and discuss her medical information supporting her request for FMLA leave, the court found that such disclosure fit within the regularly exception that "[s]upervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations."  29 CFR 825.500(g)(1). 

The court noted that the discussion regarding Holland's FMLA leave request was limited to McClellan, Griffin, Mariamma Kurian, Holland's second-line supervisor, Holland's Human Resource representative, Chris Seaton, and Richard Shaw, Holland's union representative.  

Mr. Bosland comments:  The decision reminds employers that FMLA medical information is confidential and should be shared only with those individuals with a legitimate need to know.  In this case, the court found that the employer had the right to share Holland's FMLA medical information with her initial and second-line supervisors and a company human resource representative in order to consider her leave request. That is, these managers and supervisors had a legitimate reason for the information.  The limited exception allowing disclosure confidential FMLA medical information would not, for example, apply in the event one of these managers and supervisors were to share the information with a colleague as idle gossip.    

Interestingly, the decision included disclosure of Holland's medical information with her union representative.  As written, the exception to the medical confidentially provisions of the FMLA include "supervisors and managers," not union officials.  Unfortunately, the decision does not address whether the union official was part of the conversation at Holland's request, which would likely be construed as a limited waiver of the FMLA's confidentiality requirements.   

Query whether an employer could disclose confidential FMLA medical information to the union over the objection of an employee without violating the FMLA?  A union may have an independent contractual and legal right to be present at a management-employee interview, and to demand relevant information for purposes of a grievance and/or to "police" the collective bargaining agreement regardless of an employee's wishes. Because of the obvious Hobson's choice facing employers - of violating the FMLA, the CBA, or federal/state labor laws by releasing or not releasing requested medical information - courts will likely permit an employer to disclose FMLA medical information to the union provided such disclosure is required by the CBA and/or labor laws. 

Needless to say, employers should exercise great care when discoursing FMLA medical information to the union even where it is required.  While it likely can't be required as a condition, the employer might ask the union to sign a confidentiality provision prior to releasing the information.  Alternatively, the employer could provide the information with a memorandum emphasizing the highly confidential nature of the information being provided and the union's need to keep the information confidential.  The employer may also want to address how the information will be stored, returned or disposed of.  The union might tell the employer that is none of their business, but at least the employer is on record of addressing the issue in the event the matter results in a jury trial.   

The union receiving the information would be well-advised to treat FMLA medical information as highly confidential.  Simply tossing the information into an unsecured grievance file would likely be a "bad" move.  While a union's mishandling of FMLA medical information secured from an employer would not give rise to an FMLA violation, it may be the basis for a costly and embarrassing lawsuit on alternative grounds.  The proper handling of confidential employee medical information, including FMLA certifications, is an area where the union and employer should seriously consider reaching agreement. 

The decisions is Holland v. Shinseki, No. 3: 10-CV-00908 B (N.D. Tex.), https://ecf.txnd.uscourts.gov/cgi-bin/sHWo_PUbliC_DoC?2010cv0908-55

Unsatisfactory performance of assignments does not always equate to misconduct for the purposes of disqualifying an individual for unemployment insurance benefits

Unsatisfactory performance of assignments does not always equate to misconduct for the purposes of disqualifying an individual for unemployment insurance benefits
Matter of Marc (Commissioner of Labor), 2012 NY Slip Op 01726, Appellate Division, Third Department

Andre F. Marc was employed as a head teacher but was terminated for failure to complete overdue paperwork, despite prior warnings. An Unemployment Insurance Administrative Law Judge upheld the initial determination finding that Marc was disqualified from receiving unemployment insurance benefits because he had lost his employment through misconduct.

The Unemployment Insurance Appeal Board reversed that decision, concluding that Marc’s job performance, while unsatisfactory, did not rise to the level of misconduct that would disqualify him for unemployment insurance benefits.

Commenting the "Whether a claimant lost his or her employment through disqualifying misconduct presents a factual issue for the Board, and its resolution thereof will not be disturbed if supported by substantial evidence," the Appellate Division said that in Marc’s case the Board found that he:

1. Was only afforded a minimal period of time during the week to complete his paperwork;  

2. He did not fall significantly behind until he had to take on the additional paperwork responsibilities of a fellow employee who was on vacation; and

3. The Board noted that he still managed to complete a significant amount of the backlog prior to his termination.

Thus, said the court, while the proof of claimant's inefficiency may have justified his discharge, there is, nonetheless, substantial evidence supporting the Board's finding that claimant's poor work performance did not rise to the level of misconduct.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01726.htm

Employees served with disciplinary charges alleging time and attendance violations

Employees served with disciplinary charges alleging time and attendance violations

NYC Department of Sanitation v Alves, OATH Index #402/12
NYC Department of Corrections v Sharon Jackson-Crawford, OATH Index #2710/11

The Alves Case

OATH Administrative Law Judge Alessandra F. Zorgniotti recommended a 47 day suspension without pay as the penalty to be imposed after finding a NYC Sanitation Department worker guilty of being AWOL on 15 occasions in about a one-year period and being habitually late in violation of Department rules.

Although the tardiness was typically less than four minutes, Judge Zorgniotti noted that the Department’s rules did not allow any “grace period” with respect to lateness. While the employee contended that clock used to record the 6:00 a.m. start time was not accurate, the ALJ said that the employee “was on notice that her timeliness was being monitored and should have synchronized her time piece to that clock.”

As to the penalty recommended, Judge Zorgniotti said although the Department seeks to terminate the individual or, in the alternative ten days for each AWOL and three to five days for each lateness, despite the employee’s very poor record, “I find that the penalty of termination is excessive under the circumstances.” Also, said the ALJ, “a suspension of 140 days would be disproportionate to the misconduct and would also be shocking to one’s sense of fairness.”

Still, the Judge agreed that a stern penalty is warranted, hence her recommendation that the employee be suspended without pay for 47 days.

The ALJ also commented that “The Department has a right to a work force that it can rely on. There can be no doubt that if [the employee] continues to have time and leave issues, [the employee] will be terminated from her employment.”


The Jackson-Crawford case

In another “time and attendance” case, Department of Corrections v Jackson-Crawford, OATH Index #2710/11, OATH Administrative Law Judge John B. Spooner recommended the termination of employment of a correction officer who had spent 250 days on sick leave since September 2009.

The officer testified that the absences were due to a work-related injury. ALJ Spooner, however, found that the connection between the absences and a work-related injury was tenuous and that the number of absences violated department rules by a substantial margin. The ALJ also noted that the officer had a pattern of using excessive sick leave for a number of years, including 95 days in 2006, 199 days in 2007, and 171 sick days in 2008.

The NYS Sanitation Department decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-402.pdf 

The NYC Department of Correction decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2710.pdf

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Appeal seeking removal of interim school superintendent from that position survives his or her appointment as the school district’s superintendent of schools

Appeal seeking removal of interim school superintendent from that position survives his or her appointment as the school district’s superintendent of schools

Application of Sally Stephenson seeking the removal of the Hamburg Central School District’s Interim Superintendent of Schools and President of its Board of Education, Decisions of the Commissioner of Education, Decision No. 16,330

In two separate applications, Sally Stephenson asked the Commissioner of Education to remove the Hamburg Central School District’s interim superintendent and the School District’s board president. Both appeals were consolidated for decision.

One of the issues concerned the interim superintendent’s assertions that Stephenson’s application for his removal must be denied as moot because he is no longer the interim superintendent. 

Although the Commissioner stated that he would “only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest,” he ruled that such was not the case here.

Noting that it was correct that the interim superintendent was no longer employed by the School Board as its interim superintendent, the Commissioner said that he had appointed to the position of superintendent of schools and thus is a school officer as defined in Education Law §306. Accordingly, said the Commissioner, Stephenson’s application would not be denied on this ground.

Ultimately the Commissioner dismissed both applications after finding that they had not been properly served and for other procedural reasons.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16330.html

A body electing to go into executive session must indicate the precise reasons for its so doing and not merely recite the statutory categories for doing so

A body electing to go into executive session must indicate the precise reasons for its so doing and not merely recite the statutory categories for doing so

Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 91 AD3d 1349

The basic rule is that every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with Section 105 of the Public Officers Law.

An executive session is not open to the general public, but the subjects that may be discussed in such a session are limited by §105 of the Open Meetings Law.* Those set out the statute include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person.

In this instance, said the Appellate Division, Supreme Court properly determined that the School Board violated the Open Meetings Law on three occasions when it merely recited the statutory categories for going into executive session without setting forth a precise reason or reasons for doing so.

Citing Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, the Appellate Division said that §105 of the Open Meetings Law is to be strictly construed and that the “real purpose of an executive session will be carefully scrutinized.” This, court explained, was to make certain that the mandate of the Open Meetings Law would not be thwarted “by thinly veiled references to the areas delineated thereunder."

Noting that §107(5) of the Open Meetings Law provides that "costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party," the Appellate Division said that it did not perceive any abuse of Supreme Court's discretion in awarding attorney fees to Zehner.

* Section 105 of the Public Officers Law provides that “A public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys:

 a. matters which will imperil the public safety if disclosed;

 b. any matter which may disclose the identity of a law enforcement agent or informer;

 c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;

 d. discussions regarding proposed, pending or current litigation;

 e. collective negotiations pursuant to article fourteen of the civil service law;

 f. the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;

 g. the preparation, grading or administration of examinations; and

 h. the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00623.htm