An appointing authority may agree to limit its discretion with respect to selecting an individual for appointment to a position without offending public policy

An appointing authority may agree to limit its discretion with respect to selecting an individual for appointment to a position without offending public policy

Matter of Lucas (City of Buffalo), 2012 NY Slip Op 01886, Appellate Division, Fourth Department

An arbitrator ruled that the City of Buffalo had violated the collective bargaining agreement (CBA) by ignoring a binding past practice concerning who should be offered  “the right of first refusal for the acting-time position [sic] of Assistant Water Distribution Superintendent.*”

Ultimately the parties were unable to implement the arbitration award and the arbitrator directed the City to pay one individual the sum of $54,282.71 and a second the sum of $1,094.99 based on its failure to provide the two employees “with the right of first refusal.”

Supreme Court confirmed both awards and denied the City’s counterclaims to vacate the awards.

The City appealed, contending that the awards require them to violate Civil Service Law §61(2) and §64(2) and are against public policy. The Appellate Division disagreed and sustained Supreme Court’s ruling.

The court explained that while §61(2) prohibits employees from serving “out-of-title” in nonemergency situations, the City’s submissions to the court establish that, at least during the relevant time period, it considered acting-time positions to be temporary appointments under §64(2), and such temporary appointments are made "without regard to existing eligible lists."

Further, said the court, §64(2) does not specify that there must be an emergency situation for an employee to be temporarily appointed to work for a period not exceeding three months in an acting-time position, citing CSL §61[2]. Nor, said the Appellate Division, was there any indication in the record that the employees who worked in acting-time positions during the time period involved in the grievance were improperly appointed to those positions in violation of the Civil Service Law.

Although as noted §64(2) places a three-month time limit on temporary appointments that are completed without reference to an existing eligible list, the arbitration award did not require the City to grant the most senior caulker supervisor an acting-time position whenever an Assistant Water Distribution Superintendent is absent. The award “merely states that, if there is an acting-time position, then the right of first refusal must be given to the most senior caulker supervisor.”

The Appellate Division also rejected the City’s argument that “under the circumstances of this case, a limitation on their discretion regarding acting-time positions violates public policy.” Citing  Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364, the court said that “A public employer is not prohibited by public policy considerations from agreeing to limit its discretion in the manner in which it appoints employees.”

In the Buffalo Board of Education case the parties’ collective bargaining agreement provided that appointments to vacant positions in the competitive class would be made in accordance with the “Rule of One,” sometimes referred to as the “Rule of the List,” whereby the highest person on the eligible list for appointment to a position in the competitive class willing to accept the appointment would be appointed to the vacancy notwithstanding the so-called “Rule of Three” set out in §61.1 of the Civil Service Law.

In contrast, the Rule of One applies with respect to selection of the individual for appointment from a preferred list [see CSL §81.2].

* The arbitration award did not define what constitutes an “acting-time position.”

The decisions is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01886.htm

Unconsciousness resulting from known diabetic condition insufficient to serve as constructive notice of employee’s need for FMLA leave

Unconsciousness resulting from known diabetic condition insufficient to serve as constructive notice of employee’s need for FMLA leave

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.

Sherrilynn Grosso worked as a surgery room technician for the University of Pittsburgh Medical Center.  Grosso operated a cardio pulmonary bypass machine, which sustains the life of the patient during open-heart surgery by circulating the patient’s blood and maintaining blood pressure and body temperature.  Grosso is a Type I diabetic and also suffers from Hypoglycemic Unawareness Syndrome (HUS), which can cause a person to pass out without any warning signs whatsoever. 

If Grosso were to pass out while operating the cardio pulmonary bypass machine during an operation, the patient could suffer irreversible injury or death.  At all relevant times, the Hospital was aware of Grosso's condition.  It was also aware that Grosso had recently returned from her own surgery, and was on a diet that made it more difficult to maintain her blood sugar levels.

On July 31, 2008, Grosso was seen lethargic and sleepy while operating the bypass machine during a patients bypass surgery.  After an investigation, Grosso was terminated for appearing to sleep on the job.  Grosso sued alleging that her termination interfered with her FMLA rights.  Grosso argued that her she was unable to perform the functions of her job because she had a hypoglycemic attack during the July 31 bypass operation.

She claimed that her periods of unconsciousness were, in fact, periods of FMLA-qualifying leave due to her own serious health condition- diabetes.  The Hospital moved for summary judgment, arguing that Grosso failed to give the Hospital notice of her intent to take FMLA leave.  The Court agreed with the Hospital.

In determining whether an employee provided adequate notice of the need for FMLA-qualifying leave, the Court noted:

The critical question is how the information is conveyed to the employer reasonably interpreted.  An employee who does not cite to the FMLA or provide the exact dates or duration of the leave requested nonetheless may have provided his employer with reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA.

The Court rejected Grosso's argument that, because the Hospital knew enough about her diabetes and personal surgery, the events of July 31, 2008 (passing out while operating the bypass machine during a patent's surgery) constituted notice that she was seeking FMLA leave to cover her periods of unconsciousness. 

The Court found that Grosso never mentioned leave to her supervisors and the circumstances did not indicated leave was appropriate to them.  The Court also found that allowing Grosso to leave the operating room to take breaks and get food to control her blood sugar did not constitute notice to her employer that she needed leave to cover her periods of unconsciousness while operating the bypass machine.  The Court also noted that, by indicating she was "fine" in response to a colleagues query during the bypass operation, Grosso indicated that she did not need leave.  

The Court awarded summary judgment to the Hospital on Grosso's FMLA interference claim.   

Mr. Bosland comments:  For me, the decision is interesting in terms of constructive employee notice of the need for FMLA leave in situations where the employee is unable to provide verbal notice because of the serious health condition - in this case, diabetic-related unconsciousness.  The Grosso Court appears to require something more in term of notice than prior knowledge of the condition, a few routine requests to leave the operating room for brief periods without any indication of a problem, particularly where the employee has stated that she was "fine" when asked.  

The case is reminiscent of the decision of the Seventh Circuit in Byrne v. Avon Products, Inc., 328 F.3d 379 (7th Cir.), cert. denied, 540 U.S. 881 (2003).  In that case, the employee was also incapable of requesting FMLA leave due to his serious health condition (depression).  Byrne was also terminated for sleeping on the job. 

The Seventh Circuit held that Byrne was excused from giving his employer notice of his need for FMLA leave to cover his depressive episodes due to his condition.  The Court also held that, even if that were not the case, a dramatic change in behavior alone could put the employer on sufficient notice that the employee may need FMLA leave to shift the burden of inquiry to the employer. 

Here, Grosso's conduct was not a dramatic change in behavior, but, ironically, in line with the known symptoms of her serious health condition- unanticipated periods of unconsciousness.  For me, the key difference between Grosso and Byrne is that, in the former, the employee gave assurances that she was fine when, in retrospect, she was not.  Byrne, in contrast, never asserted that he was "fine" as he was never asked about his condition by employer before being terminated.  For the Grosso court, the employee's assurance that she was fine trumped any suspicion that she was not the employer may have had.  That is, courts will not presume that an employee with a known serious health condition needs leave for that condition in every instance.  

Note that the court in Grosso did not hold that an employee must always articulate their need for FMLA leave.  Rather, the court looked at all of the attendant circumstances to determine if the employee gave notice- actual or constructive - of the need for FMLA leave.  Employers need to keep that in mind when determining if an employee may be requesting FMLA leave even though they failed to ask for leave of any kind.   

The decision, Grosso v. UPMC, No. 10-0075 (W.D. Pa. Mar. 9, 2012), is posted on the Internet at:

http://law.justia.com/cases/federal/district-courts/pennsylvania/pawdce/2:2010cv00075/95715/59

Court dismisses lawsuit by applying the Doctrine of Res Judicata

Court dismisses lawsuit by applying the Doctrine of Res Judicata
Anderson v New York City Dept. of Educ., 2012 NY Slip Op 02056, Appellate Division, First Department

A former probationary teacher file an Article 78 petition challenging his termination from his position while still serving as a probationer. Supreme Court granted the NYC Department of Education’s motion to dismiss the complaint and the former teacher appealed.

The Appellate Division sustained the lower court’s ruling, explaining that the individual’s action was barred by the Doctrine of Res Judicata.*

The Appellate Division said that the former teacher's action in this case was based on the same set of circumstances as his prior Article 78 proceeding, which had been dismissed.

Citing O'Brien v City of Syracuse, 54 NY2d 353, the court said that once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, “even if based upon different theories or if seeking a different remedy"

* Latin: “a matter judged." Res judicata is the principle that, as a general rule, an issue may not be relitigate in the same or a different tribunal once it has been judged on the merits by a court of competent jurisdiction.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02056.htm