Employee loses claim of unlawful retaliation because of her disability after conceding she lacked the seniority required for transfer

Employee loses claim of unlawful retaliation because of her disability after conceding she lacked the seniority required for transfer
Ruane-Wilkens v Board of Educ. of City of New York, 56 AD3d 648

Maryellen Ruane-Wilkens sued the New York City Board of Education in an effort to recover damages for alleged employment discrimination and retaliation pursuant to Executive Law §296. According to the decision, Ruane-Wilkens suffers from a disability.

When she requested a transfer from Prospect Heights High School to a different school, the transfer was denied because “she did not have enough seniority.” Contending that the number of students in her class was temporarily increased from 25 to 40, and she was assigned to teach another class in retaliation for her filing a transfer request, Ruane-Wilkens filed a complaint alleging unlawful employment discrimination due to her disability pursuant to Executive Law §296, the State’s Human Rights Law.

After noting that it is unlawful to retaliate against an employee because he or she opposed statutorily-forbidden discriminatory practices, the Appellate Division said that in order to make a prima facie showing of retaliation, the employee must show that: (1) he or she participated in a protected activity, (2) the employer was aware of his or her participation in that activity, (3) the employer took an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action.

Dismissing Ruane-Wikens’ appeal, the Appellate Division held that she failed to present any evidence that her transfer request was denied due to her disability. Indeed, said the court, “[s]he herself conceded that it was denied because she did not have enough seniority.”

As the record contained no evidence that Ruane-Wikens ever complained about any discrimination, the Appellate Division said that she failed to raise a triable issue of fact as to whether she was engaged in an activity which would have given rise to a cause of action to recover damages for employment discrimination or retaliation. Accordingly, said the court, the Supreme Court properly granted the Board of Education's motion for summary judgment dismissing her complaint.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09062.htm

Governor Cuomo and NYSCOPBA Announce Tentative Contract Agreement

Governor Cuomo and NYSCOPBA Announce Tentative Contract Agreement

Source: Office of the Governor

On June 18, 2012 Governor Andrew M. Cuomo and Donn Rowe, President of the New York State Correctional Officers and Police Benevolent Association, Inc. (NYSCOPBA), issued a press release announcing that a contract agreement between the State and the Union representing New York State's correction officers. The agreement is subject to ratification by the members of NYSCOPBA.

The proposed agreement resolves outstanding wage and contractual issues dating to 2009 and follows the pattern of recently negotiated contracts. The contract is tentative pending ratification by NYSCOPBA membership.

NYSCOPBA’s Security Services unit is composed of correction officers and sergeants assigned to prisons in the Department of Corrections and Community Supervision. Members of NYSCOPBA have not had a contract since 2008 and opted out of arbitration for the years 2009 through 2011. The press release reports that "This is the first negotiated agreement between the state and NYSCOPBA since 1999. NYSCOPBA and New York State were unable to agree on a contract for 9 years prior to this proposed agreement." 

Highlights of the agreement, which will require ratification by the NYSCOPBA membership, include:

• Zero percent wage increases for the three years 2011-2013, and 2% increases in 2014 and 2015.

• A $1,000 retention bonus paid out $775 in 2013 and $225 in 2014.

• Deficit Reduction Leave of nine days (unpaid leave).

• One retroactive payment that is scheduled to be paid before the end of the calendar year, “only if possible.”

• Health insurance premium share increase by 6% for both individual and families, making the share 16% for individuals and 31% for dependent premiums.

• Officers will receive layoff protection identical to that provided to other unions in labor agreements negotiated since last year. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the state's fiscal circumstances are not covered by this limitation.

Probationary employee terminated for alleged misuse of sick leave

Probationary employee terminated for alleged misuse of sick leave
Curcio v New York City Dept. of Education, 55 AD3d 438

The New York City Department of Education dismissed a probationary physical education teacher, Louis Curcio, from his position and simultaneously reemployed him as a tenured teacher under his common branch license.

In response to Curcio’s petition seeking reinstatement as a probationer in his former physical education teacher position Supreme Court, New York County Justice Shirley Werner Kornreich, denied the Department of Education’s motion to dismiss so much of the petition as sought review of the termination of Curcio's probationary employment under his physical education license. Justice Kornreich also reinstated petitioner's physical education license nunc pro tunc*  to May 15, 2006.

The Department appealed. The Appellate Division “unanimously reversed” Justice Kornreich’s reinstating Curcio’s physical education license and dismissed Curcio’s petition challenging his termination.

Curcio had sued the Department for terminating his probationary employment under his physical education license. The Department had dismissed him because of Curcio’s alleged premeditated misuse of sick leave. The Appellate Division said that Curcio petition challenging his dismissal from his probationary employment should have been dismissed as he failed to establish that his termination "was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith."

On a related issue, the Appellate Division noted the record shows that Curcio was not given the requisite 60-day statutory notice that his probationary employment was being terminated by the Department.

Typically such a lack of notice would have entitled Curcio to one day's pay for each day the notice was late. Here, however, the court determined that Curcio was not entitled to such payment because after being terminated from his probationary employment, he immediately resumed his duties at the same school and at the same rate of pay under his common branch license under which he was fully tenured.

* Nunc pro tunc [Latin for "now for then"] refers setting an earlier date for the effective date of an order or judgment, giving it a “retroactive” legal effect.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08020.htm

Petitioning for a separate negotiating unit

Petitioning for a separate negotiating unit
Civil Service Employees Association, Inc., Local 1000, and Baldwin Union Free School District, PERB Decision C-5690

CSEA filed a petition seeking to represent Security Aides in a separate unit. The District opposed the petition.

PERB’s Administrative Law Judge found that the Security Aides were most appropriately added to the existing School Monitors and Health Aides unit represented by CSEA. A community of interest was found to exist based upon a similarity in mission, skill level and working conditions. The ALJ rejected CSEA's argument that a conflict of interest was created by CSEA's initiation of litigation that challenged the District's assignment of certain duties to Security Aides instead of School Monitors.

Also rejected was CSEA's argument that a conflict existed because the Security Aides perform a security function. The ALJ noted that the Security Aides are not charged with the primary duty of investigating or reporting the job related misconduct of District employees, but to protect students and District employees from outside intruders. The ALJ placed the position in the existing unit pursuant to New York Convention Center Operating Corp, 27 PERB 3034 (1994), since there was no contractual bar to the placement and adding the position effectuated a de minimus change to the unit.

Appeal dismissed after employee fails to prove efforts to exhaust her administrative remedy would have been an exercise in futility

Appeal dismissed after employee fails to prove efforts to exhaust her administrative remedy would have been an exercise in futility
Amorosano-LePore v Grant, 56 AD3d 663

This decision by the Appellate Division illustrates the importance of exhausting administrative remedies before seeking judicial relief.

Gina Amorosano-LePore filed a CPLR Article 78 petition seeking a review of the City of New Rochelle’s decision to terminate her after she was found guilty of the disciplinary filed against her.

Instead of filling its answer to Amorosano-LePore’s petition, the City asked Supreme Court to dismiss the petition because Amorosano-LePore had failed to exhaust her administrative remedies under the collective bargaining agreement between the City and the Civil Service Employee's Association.

Supreme Court granted the City’s motion and Amorosano-LePore appealed.

The Appellate Division sustained the lower court’s ruling, holding that the evidence demonstrated that Amorosano-LePore failed to avail herself of the available administrative remedies provided in the CBA.

While there are some exceptions to the rule requiring the exhaustion of administrative remedies, such as demonstrating that efforts to avail oneself of the available administrative procedures such as those that are set out in a statute or a collective bargaining agreement would be futile and thus excuse such failure to exhaust those remedies, the court said that in Amorosano-LePore's case she failed to prove that her pursuing her administrative remedies provided by the controlling collective bargaining agreement would have been an exercise in futility.

The court also rejected Amorosano-LePore argument that the City’s officials acted beyond the scope of their authority, noting that this directly related to questions of interpretation, application, and enforcement provisions of the CBA and thus was reviewable under the CBA. Similarly, Amorosano-LePore claim that she was deprived of due process the hearing officer’s conduct also could have been addressed through administrative review as provided for in the collective bargaining agreement.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09073.htm

Employees and retirees covered by a health insurance plan must be advised of changes

Employees and retirees covered by a health insurance plan must be advised of changes

Orth v Wisconsin State Employees Union Council 24 et al, USCA 7^th Circuit, Docket # 07-2778.

A collective bargaining agreement between the employer (Council 24 of the Wisconsin State Employees Union) and the union that represented Mr. Orth prior to his retirement provided for certain changes to the health insurance plan available to employees and retirees. Although the case involved alleged violations of the Taft-Hartley Act and ERISA, it may be instructive to those entities and individuals not subject to these federal acts.

According to the decision, there was a “secret side deal between the union and the employer in this case” regarding certain changes in the health insurance plan. This, said the court, constituted a breach of the plan managers’ fiduciary duty to the plan participants and beneficiaries.

Further, said the Circuit Court, "The plan fiduciaries are to the plan participants and beneficiaries as the union is to the workers it represents;" the union too is a fiduciary, and its duty of fair representation is simply another name for “fiduciary duty” and “just as in the collective bargaining setting, it is a breach of fiduciary duty to change the plan without notice to those affected by the change.”

Without knowledge of their rights under the plan, participants cannot make intelligent decisions with regard to the purchase of private health insurance to replace or supplement their plan benefits. The secret side deal between the union and the employer in this case, said the court, was a breach of the plan managers’ fiduciary duty to the plan participants and beneficiaries.

The decision is posted on the Internet at:

http://www.ca7.uscourts.gov/tmp/HW1FFQKO.pdf