Expulsion from a membership organization

Expulsion from a membership organization
Dormer v Suffolk County Police Benevolent Assn., Inc., 2012 NY Slip Op 03979, Appellate Division, Second Department

The then Police Commissioner of Suffolk County and the then Deputy Police Commissioner of Suffolk County sued the Suffolk County Police Benevolent Association, Inc., [PBA] and the Superior Officers Association of the Police Department of the County of Suffolk, [SOA] contending that their expulsions from these organizations was "illegal and improper."

Both the Commissioner and the Deputy Commission contended that they were expelled from the PBA and the SOA in retaliation for following official directives which required them to transfer responsibility for patrolling certain roadways on Long Island from the Suffolk County Police Department to the Office of the Sheriff, claiming that their expulsion had an adverse effect on them due to the loss of a life insurance policy. They sought a court order reinstating their membership “with full benefits.”

As their petitions were dismissed by Supreme Court as untimely, which ruling was affirmed by the Appellate Division, the merits of their claims were never addressed by the courts.

However, assuming, but not deciding, that the PBA and the SOA were recognized or certified for purposes of collective bargaining with the Suffolk County Police Department, as both the Commissioner and the Deputy Commissioner were expelled from their “membership” in the PBA and the SOA, presumably neither the Commissioner nor the Deputy Commissioner positions had been designated managerial or confidential within the meaning of §214 of the Civil Service Law [the Taylor Law].

§214 provides, in pertinent part, that “ No managerial or confidential employee, as determined pursuant to subdivision seven of section two hundred one of this article, shall hold office in or be a member of any employee organization which is or seeks to become pursuant to this article the certified or recognized representative of the public employees employed by the public employer of such managerial or confidential employee.”

§201.7(a) of the Civil Service Law provides, in pertinent part, that “The term ‘public employee’ means any person holding a position by appointment or employment in the service of a public employer, except that such term shall not include for the purposes of any provision of this article … persons who may reasonably be designated from time to time as managerial or confidential.”

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The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03979.htm

Filing exceptions to a PERB administrative law judge’s determination

Filing exceptions to a PERB administrative law judge’s determination

Matter of County of Ontario and Ontario County Sheriff [Joint employers] PERB decision U-30353

The Board rejected the Joint Employer’s contention that it had a right to file exceptions to an ALJ’s interim decision denying its motion to dismiss a charge, without the necessity of seeking leave to file exceptions from the Board pursuant to § 212.4(h) of the Rules of Procedure (Rules).

The Board reached its conclusion based upon well-established precedent requiring a party to seek permission to file exceptions from interim decisions and rulings pursuant to §212.4(h) of the Rules.

Nevertheless, the Board treated the Joint Employer’s pleading as a motion for leave to file exceptions and concluded that the Joint Employer failed to demonstrate extraordinary circumstances.

Pursuant to §205.5(d) of the Public Employees’ Fair Employment Act (Act), PERB has exclusive jurisdiction to determine whether an employer has engaged in an improper practice in violation of §209-a.1 of the Act. The fact that a notice of claim was served asserting an alternative motivational theory underlying the alleged retaliation did not deprive PERB of jurisdiction to hear the pending charge, nor did it constitute a waiver of jurisdiction.

The Board noted, however, that although the pursuit of ancillary litigation may not deprive of PERB of jurisdiction or constitute a waiver, the results of such litigation may, in certain circumstances, form the basis for a collateral estoppel defense to a charge pending at PERB. 

Practice Tip noted by PERB staff:

Practitioners are reminded that under Board precedent, motions for leave to file exceptions are very rarely granted due to the strict standard requiring a movant to demonstrate extraordinary circumstances. This high standard is applied by the Board based upon the view that it is far more efficient to await the final disposition of the merits of a charge before examining interim determinations and to avoid unnecessary delays in the processing of improper practice charges. 

NYPPL has added a link to Education News

NYPPL has added a link to Education News

The Internet web site EducationNews [ www.EducationNews.org ] is a leading news resource reporting on national and international educational, political, business, and environmental issues. Since 1997 EducationNews has provided relevant news on a daily basis.

The site is listed in the sidebar in NYPPL's listing of "Links to Other Useful Web Pages" as Education News - a global resource.

Willful failure to comply with a “discovery order” assumes an ability to comply

Willful failure to comply with a “discovery order” assumes an ability to comply
2012 NY Slip Op 03786, Appellate Division, First Department

One of the issues considered by the Appellate Division in this phase of this litigation was Supreme Court’s denial of a motion to “strike” the New York City Department of Education’s [DOE] answer based on the petitioner’s allegation that DOE had “failed to disclose” certain records she had demanded in the course of discovery.

The Appellate Division unanimously affirmed the Supreme Court’s ruling, explaining the petitioner had failed to "show conclusively that [the DOE’s] failure to disclose was willful, contumacious or due to bad faith."

The court noted that DOE was not in possession of certain records demanded that had been prepared by a former employee nor could DOE control whether the former employee “contacts them.”

In such cases the Appellate Division said the test as to a party's “willful failure to comply with a discovery order” assumes an ability to comply with such an order and the party's decision not to comply with such an order. However, a showing that it is impossible to make the particular disclosure will bar the imposition of a sanction for such non-disclosure pursuant to Section 3126 of the Civil Practice Law and Rules.

The court concluded that DOE had satisfied the test of “impossibility” insofar as these particular records were concerned.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03786.htm

Employee’s hope that evidence may be uncovered during discovery is insufficient to reject the employer’s motion for summary judgment

Employee’s hope that evidence may be uncovered during discovery is insufficient to reject the employer’s motion for summary judgment

Washington v New York City Bd. of Educ., 2012 NY Slip Op 04103, Appellate Division, First Department

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The employee claimed that she had slipped while using an internal staircase in the school building and then fell.

At the administrative hearing held to consider her claim she testified that she "tripped/slipped and fell" on a "substance" and that the staircase was "unclean, dirty and contained a substance for an unreasonable amount of time." She subsequently filed verified bill of particulars that she slipped and fell "on an unknown liquid substance," and that the subject stairwell was "dirty, slippery, [and] wet."

Although discovery was still pending, the New York City Board of Education moved for summary judgment dismissing the  employee's complaint. The Appellate Division said that the Board had established a prima facie entitlement to summary judgment by pointing to the employee’s testimony at the administrative hearing that she did not know what caused her to fall.

Sustaining the granting of the Board’s motion, the Appellate Division explained that the employee had failed to submit evidence sufficient to raise a triable issue of fact. The assertions in her bill of particulars and her affidavit that she slipped on a wet and slippery condition caused by an "unknown liquid" or "semi-liquid" substance contradict her prior hearing testimony that she did not know what caused her to fall.

Because, said the court, the employee’s affidavit and bill of particulars can only be considered to avoid the consequences of her prior testimony, they are insufficient to raise an issue of fact.

While the employee claimed that certain requested “incident reports and maintenance records,” in conjunction with her testimony that she slipped on "something," could prove that a foreign substance was on the stairs where she fell, the Appellate Division ruled that “the mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during discovery is insufficient to deny the motion.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04103.htm

Transfer of exclusive bargaining unit work to another bargaining unit

Transfer of exclusive bargaining unit work to another bargaining unit

Selected Rulings posted by PERB  – Matter of the City of New Rochelle, Decision U-26722

The Board affirmed a decision of an ALJ, concluding that the employer violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it unilaterally transferred exclusive bargaining unit work to employees in another bargaining unit. In reaching its decision, the Board rejected the argument that a stipulation resolving a prior improper charge deprived the agency of jurisdiction to decide the present charge.

The Board affirmed the ALJ’s conclusion that the settlement agreement did not grant PBA unit members the right to exclusively perform at issue, but made them eligible for such work and set forth the terms and conditions applicable to perform the work. The Board also rejected a duty satisfaction defense premised upon the terms of the management rights clause in the parties’ agreement

From the Office of the State Comptroller

From the Office of the State Comptroller

DiNapoli: Fire District Mismanaged Funds

The Thiells–Roseville Fire District made more than $60,000 in questionable payments and inappropriate gifts, according to an audit released on May 24, 2012 by State Comptroller Thomas P. DiNapoli.


DiNapoli: DEC Employee Who Cheated Taxpayers Pleads Guilty

A former biologist with the state Department of Environmental Conservation Tuesday pleaded guilty to petit larceny in Albany County Court and paid $15,000 in restitution for spending several hours a week at a local bar instead of performing his work duties, State Comptroller Thomas P. DiNapoli said.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audits: the Town of Bath; the Village of Bath; the Town of Lloyd; the Town of Moreau; the Town of Parish; the Town of Saugerties; the Town of Taghkanic.; the New York City Health and Hospitals Corporation; the State Education Department; and, the Department of Motor Vehicles .

Findlaw – Human Resources Newsletter

Findlaw – Human Resources Newsletter

Table of contents for the week of May 29, 2012

Please click on title to access the item.

DOES 'TOO HOT' WOMAN HAVE AN EEOC CLAIM IN AN 'AT WILL' EMPLOYMENT STATE? (Philadelphia Employment Law News) - Recently, Lauren Odes claimed that she was fired for being "too hot" from the lingerie wholesaler where she worked. The New York Magazine also reported that Odes, with the help of her attorney, Gloria Allred, filed an EEOC complaint charging gender and religious discrimination.

LOST YOUR JOB? WHO HASN'T? FINDLAW'S GUIDE HELPS YOU THROUGH (Philadelphia Employment Law News) - Well, it looks like the Sixers held on to their jobs against the Celtics. But not so lucky are Dexter Pittman and Udonis Haslem of the Miami Heat, who are suspended after a recent game.

WHAT DOES THE EEOC HAVE TO DO BEFORE IT CAN FIGHT DISCRIMINATION? (The Chicago Employment Law Blog) - Judge Ruben Castillo, of the U.S. District Court for the Northern District of Illinois, released an opinion last week that might just lead to the Supreme Court in a few years. The case stems from the Equal Employment Opportunity Commission's role as guardian of the discriminated and disabled.

FINDLAW POLL: PEOPLE PAD RESUMES, IT HURTS (The Chicago Employment Law Blog) - Here at FindLaw, we’re not just excellent explicators of existing law. We don’t just react to news stories. We also do original research.

EX-TIME WARNER EMPLOYEE SUES OVER PORN AT WORK (FindLaw's Law & Daily Life) - Time Warner Cable has been hit with another discrimination lawsuit, this time by a former employee in New York. Keith Reid worked in the company's New York City maintenance department for about 9 years before he was fired earlier this year.

JACK'S PLACE ROBBERY: A WORKERS' COMP CLAIM WORTHY OF A RAP STAR (The Houston Employment Law Blog) - While it seems like only stars in the hip hop world get paid if they survive a shooting, workers' comp insurance just might pay a regular Joe if he got shot at work.

BEST BUY CEO BRIAN DUNN GETS $6.6M SEVERANCE PACKAGE AFTER SCANDAL (FindLaw's In House) - Best Buy CEO Brian Dunn may have stepped down in early April, but we're only now learning about the intimate details of his relationship with a 29-year-old employee. And the amount of his severance package, of course.

WAITRESSES' 'NO FATTIES' LAWSUIT CAN GO TO JURY (FindLaw's Law & Daily Life) - Two former New York City waitresses will soon be meeting with a jury. A state appeals court has agreed that Kristen McRedmond and Alexandria Lipton can sue South Place Restaurant & Bar for retaliation and discrimination. They claim they were fired after complaining about the bar's "no fatties" policy.

Employee who failed to attend administrative disciplinary hearing tried in absentia

Employee who failed to attend administrative disciplinary hearing tried in absentia

OATH Index #871/12

The employee failed to appear at the disciplinary hearing and the employer proceed to  established charges alleging various acts of misconduct and, or, insubordination in absentia.*

OATH Administrative Law Judge Alessandra F. Zorgniotti noted that these acts, as well as the employee’s responses when questioned about them, demonstrated that the employee refused to acknowledge his supervisor’s authority over him and would not change his ways. 

Notwithstanding the fact that the employee had never previously been served with disciplinary charges, Judge Zorgniotti recommended termination of employment.

* Courts have held that the employer may proceed with the disciplinary action even though the employee is not present. The hearing may proceed and the employee tried in absentia provided the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-0871.pdf

Alteration of an employee’s duties and responsibilities standing alone not sufficient to establish a prima facie case of discrimination within the meaning of the Human Rights Law

Alteration of an employee’s duties and responsibilities standing alone not sufficient to establish a prima facie case of discrimination within the meaning of the Human Rights Law

After a “literacy coach” was reassigned to a classroom teacher position, the employee filed a complaint alleging the reassignment constituted an unlawful adverse employment action. The Appellate Division disagreed, concluding that none of the employment actions complained of by the employee rose to the level of an adverse employment action.

The court said that the transfer from the position of literacy coach to a classroom teacher was "merely an alteration of [the educator's] responsibilities" and not an adverse employment action, pointing out that apart from a change in the nature of her duties, the individual "retained the terms and conditions of her employment, and her salary remained the same."

As to the teacher’s allegation that she was the victim of unlawful discriminated after her transfer back to the classroom teaching position because she was subjected to ”a relentless stream of reprimands,” the Appellate Division ruled that this was not sufficient to establish a prima facie case of unlawful discrimination. The court noted that “Notwithstanding the frequent reprimands, the teacher received a satisfactory end-of-year performance rating and none of the reprimands resulted in any reduction in pay or privileges."

Addressing the teacher’s complaint of unlawful discrimination based an alleged failure of the employer “to reasonably accommodate her disabling condition,” the court said that the teacher “concedes that [the employer] provided her with a ‘satisfactory’ accommodation in the form of moving her classroom from the fourth to the second floor, with ‘no escort duty.’"

Finally, the Appellate Division said that the teacher had failed to show that her "workplace was permeated with ‘discriminatory intimidation, ridicule and insult’ that [was] sufficiently severe or pervasive to alter the terms or conditions of' employment, so as to make out a claim for hostile work environment.”

Finding that the employee's allegations of unlawful discrimination was properly dismissed as none of the employer’s actions complained of constituted an adverse employment action, the Appellate Division affirmed the Supreme Court’s order granting the City’s motion for summary judgment dismissing the complaint.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03935.htm