Dismissed probationer's allegations that her termination constituted retaliation for exercising her First Amendment rights rejected

Dismissed probationer's allegations that her termination constituted retaliation for exercising her First Amendment rights rejected

Kiehle v. County of Cortland, USCA, 2^nd Circuit, Docket #11-3097-cv [Summary Order*]

Kristina Kiehle appealed a federal district court's judgment granting summary judgment to the County of Cortland and three employees of the Cortland County Department of Social Services ("DSS") alleging that she had been terminated from her position as a probationary case worker in retaliation for testifying at a New York State Family Court ("Family Court") hearing.

The Circuit Court of Appeals, after a de novo review, sustained the district court’s granting the County’s motion for summary judgment.

According to the decision, Kiehle had voluntarily testified at a Family Court hearing in which a mother sought to re-obtain custody of her daughter. After introducing herself as a DSS caseworker, Kiehle stated that her conclusions were based on information that she had obtained in the course of her public employment and that “the mother was able to adequately supervise, and was not neglectful of, her children. She then recommended that the child be returned to the mother.

The Circuit Court said that although Kiehle’s position was contrary to DSS’s position in the proceeding, she had not distinguished her personal views from those of DSS. Accordingly it sustained the district court’s conclusion that Kiehle did not testify as a private citizen on a matter of public concern at the Family Court hearing but, rather, she testified as a government employee, i.e., as a DSS caseworker.

Citing Garcetti v Ceballos, 547 U.S. 410, the Circuit Court explained that "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

The Circuit Court set out the following guidelines used by courts in cases where a public employee claims “First Amendment retaliation,” indicating that in order for the employee to prevail, he or she must demonstrate that:

(1) The speech addressed a matter of public concern,

(2) The employee suffered an adverse employment action, and

(3) There was a causal connection existed between the speech and the adverse employment action" such that "speech was a motivating factor in the determination."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/6b2350f4-485a-4223-8c69-f3f5bc5e76f1/16/doc/11-3097_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6b2350f4-485a-4223-8c69-f3f5bc5e76f1/16/hilite/

* Rulings by summary order do not have precedential effect.

Employee terminated for omitting relevant information from his application for employment

Employee terminated for omitting relevant information from his application for employment
Russell v New York Citywide Admin. Servs., 55 AD3d 614

Stephen Russell sued the New York City Department of Citywide Administrative Services following its terminating his temporary employment as a bridge and tunnel officer. An investigation by the Citywide Administrative Services revealed that Russell had failed to disclose pertinent information on his employment application. The information omitted: Russell’s “prior misdemeanor criminal conviction, prior revocations and suspensions of his driver's license, and a prior termination from employment by the New York City Transit Authority.”

The Appellate Division agreed with Supreme Court that Citywide Administrative Service’s decision to terminate Russell’s temporary employment was neither arbitrary nor capricious, had a rational basis, and was not made in bad faith.

Section 50.4 (f) and (g), respectively, permit the State Civil Service Department and municipal commissions to disqualify an individual “who has intentionally made a false statement of any material fact in his [or her] application; or (g) who has practiced, or attempted to practice, any deception or fraud in his [or her] application … to be disqualified. 

The statute further provides that “No person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefore [sic] and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”

The full text of the decision is posted on the Internet at
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07670.htm

Tours of active military duty considered for the purpose of mitigating disciplinary penalty imposed on employee

Tours of active military duty considered for the purpose of mitigating disciplinary penalty imposed on employee
Gomez v Kelly, 55 AD3d 305

New York City Police Commissioner Raymond W. Kelly found Manuel Gomez guilty of five charges of misconduct and as the penalty placed Gomez on a one-year disciplinary probation and imposed a forfeiture of 30 days of vacation credit.

The charges filed against Gomez: violation of his commanding officer's order to terminate his involvement with the District Attorney's office in a criminal investigation; failure to take possession of drugs during a police department integrity test; failure to voucher his helmet, mace and shield before leaving for active military duty; retrieved his service handgun before the official date of his discharge from active military duty; and failure to report a domestic incident to the department.

Gomez appealed and the Appellate Division, after sustaining the Commissioner’s determination finding Gomez guilty of the charges filed against him, ruled the penalty imposed by the Commissioner was “excessive in light of the mitigating circumstances, i.e., [Gomez's] several tours of active military duty, including a year in Afghanistan for which was decorated, and the substantial pay lost in connection with his military service,” citing Pell v Board of Education, 34 NY2d 222.

The court remanded the case to the Commissioner for the purpose of his setting a lesser penalty.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07181.htm

Substantial evidence supports disciplinary hearing officer’s findings

Substantial evidence supports disciplinary hearing officer’s findings

Mercado v Kelly, 54 AD3d 654

A police officer appealed his termination from his position as a New York City police officer after he was found guilty of certain charges following a disciplinary hearing.

The Appellate Division, in a unanimous decision, said that “Substantial evidence supports the findings, including that [the officer] possessed a stolen license plate and made false and misleading statements about whether he knew the plate was stolen.

Accordingly, the court dismissed the officer’s appeal as “There is no basis for disturbing the hearing officer's assessment of petitioner's credibility regarding the inconsistencies between his plea allocution in the criminal case against him and his statements to the Internal Affairs Bureau investigators.”

As to the penalty imposed by the Police Commissioner, dismissal, the Appellate Division said that “The penalty of dismissal does not shock our sense of fairness, particularly where the evidence gives rise to the inference that petitioner obtained the stolen license plate by virtue of his official position and intended to use the plate for fraudulent purposes, citing Kelly Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07175.htm

“Tebowing” and other activities by students leading to disciplinary suspensions

“Tebowing” and other activities by students leading to disciplinary suspensions

Source: On Board, a publication of the New York State School Boards Association

“Tebowing” that resulted in hallway congestion and other unusual reasons for initiating student disciplinary actions leading to suspensions are described in an article published in the July 2, 2012 edition of the New York State School Boards Association’s publication On Board.

Among other incidents leading to suspensions: Growing long hair for charity [in violation of the school’s dress code] and “Chivalry” [holding an exterior door open for an adult known to the student in violation of security procedures].

The article is posted on the Internet at:

http://www.nyssba.org/index.php?src=news&submenu=news_media&srctype=detail&category=On%20Board%20Online%20July%202%202012&refno=2213

An administrative decision made in violation of lawful procedure, affected by an error of law, that is arbitrary and capricious or that is an abuse of discretion is fatally defective

An administrative decision made in violation of lawful procedure, affected by an error of law, that is arbitrary and capricious or that is an abuse of discretion is fatally defective

Malverne Volunteer Fire Dept. v New York State Off. of Fire Prevention & Control, 2012 NY Slip Op 05174, Appellate Division, Second Department

The New York State Fallen Firefighters Memorial Appeals Committee denied a request to include former Malverne Volunteer Fire Department firefighter Paul Ryan Brady's name on the New York State Fallen Firefighters' Memorial Wall. Malverne appealed, contending that the Committee’s decision was not made after a quasi-judicial hearing it claimed was required by the Committee’s procedures.

Although Supreme Court dismissed Malverne’s petition, the Appellate Division “reversed, on the law” and remanded the matter to Supreme Court “to direct the New York State Fallen Firefighters Memorial Appeals Committee to include Paul Ryan Brady's name on the New York State Fallen Firefighters' Memorial Wall.”

The Appellate Division explained that in this instance it must consider whether the Committee’s determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.

The test applied in such cases: “did the action taken by the agency have a rational basis." Citing Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, the Appellate Division said that a court will overturn such action only "where it is taken without sound basis in reason' or regard to the facts'" or where it is "arbitrary and capricious."

In this instance, said the court, the determination of the Committee that the death of firefighter Brady was not a "line of duty death" within the selection criteria for inclusion on the New York State Fallen Firefighters Memorial Wall was arbitrary and capricious and did not have a rational basis in the record.

Indeed, said the court, “The record demonstrates that, under the applicable selection criteria, Paul Ryan Brady died while engaged in an action that was required, authorized or recognized by law, rule, regulation, [or] condition of employment.’"

Accordingly, the Appellate Division ruled that Supreme Court should have [1] granted Malverne’s petition, [2] annulled the Committee’s determination and [3] directed the appeals committee to include Brady's name on the New York State Fallen Firefighters' Memorial Wall

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05174.htm

Statute of limitations no bar to bring disciplinary charges when the allegations claim “continuous incompetency”

Statute of limitations no bar to bring disciplinary charges when the allegations claim “continuous incompetency”

Canna v Town of Amherst, 55 AD3d 1269

Town of Amherst Superintendent of the Wastewater Treatment Facility Anthony R. was terminated from his employment following a hearing conducted pursuant to Civil Service Law §75 (1) based on charges alleging incompetence in the supervision of the operation of the facility.

Canna appealed, contending, among other things, that the Section 75 hearing officer “was biased against him;” that the Town Board’s resolution to terminate his employment was not supported by the required number of valid votes; that the charges were barred by the 18-month statute of limitations set out in Section 75(4) of the Civil Service Law; and that the penalty imposed, dismissal, was “shocking to one’s sense of fairness.”

The Appellate Division rejected Canna’s claim the hearing officer was biased, holding that Canna failed to present "a factual demonstration to support the allegation of bias and proof that the outcome [of the hearing officers findings and recommendation] flowed from it."

As to the validity of the Board’s vote, the court rejected Canna’s claim that the Board’s vote was tainted by the statements by one Town Board member to the effect that it would be difficult for Canna to resume his position as superintendent of the Facility after all that had transpired. Further, said the Appellate Division, “The record establishes that he further stated that, although [that member of the Board] did not believe that [Canna] was ‘single handedly’ responsible for all of the problems at the Facility, he believed that the evidence establish that [Canna] was incompetent, and incompetence is a valid basis for termination.”

Addressing the other aspects of Canna’s appeal, the Appellate Division said that the disciplinary proceeding against Canna was not time-barred based on the 18-month limitations period set forth in Civil Service Law §75(4) because his “alleged incompetency was continuous” and that the penalty imposed upon him, dismissal, was not so disproportionate to the offense as to be shocking to one's sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

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

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07300.htm

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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Rebutting the statutory presumption that an “on-the-job” injury or death was job-related shifts burden of showing job-relatedness to the claimant

Rebutting the statutory presumption that an “on-the-job” injury or death was job-related shifts burden of showing job-relatedness to the claimant
Petrocelli v Sewanhaka Cent. School Dist., 54 AD3d 1143

Section 21 of the Workers’ Compensation Law sets out “a presumptions of compensability when an unwitnessed or unexplained death occurs during the course of one's employment.” The presumptions “in the absence of substantial evidence to the contrary are:

1. That the claim comes within the provision of this chapter;

2. That sufficient notice thereof was given;

3. That the injury was not occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another;

4. That the injury did not result solely from the intoxication of the injured employee while on duty.

5. That the contents of medical and surgical reports introduced in evidence by claimants for compensation shall constitute prima facie evidence of fact as to the matter contained therein.

However, these are rebuttable presumptions and if there is substantial evidence to the contrary, the claimant has the burden of establishing that the injury or death is causally related to employment.

Denise Petrocelli’s husband died while coaching a high school basketball game. Mrs. Petrocelli filed a claim for workers' compensation death benefits.

The death certificate listed as Mrs. Petrocelli’s husband’s cause of death as “a spontaneous rupture of the splenic artery with hemoperitoneum, due to portal hypertension complicating cirrhosis of the liver and chemotherapy for treatment of a primitive neuroectodermal tumor of the right adrenal gland.” A Workers' Compensation Administrative Law Judge ruled that the Workers' Compensation Law §21 presumption of compensability had been rebutted by the statements of the cause of death set out in the death certificate. Mrs. Petrocelli was directed to produce evidence of causally related death. Once this was done, the employer would have an opportunity to produce a consultant's report on the same issue.

The Workers' Compensation Board affirmed the ALJ’s finding and Mrs. Petrocelli appealed.

The Appellate Division sustained the Board’s determination, ruling that “irrefutable proof excluding all . . . conclusions other than that offered by the employer that the accidental injury was not work related” is not required to rebut a Workers’ Compensation Law Section 21 presumption.

In this instance, said the court, evidence contained in the death certificate indicates that Mrs. Petrocelli’s husband’s death was directly caused by factors not related to his work. Accordingly, the court declined to disturb the Board's finding that the Section 21 presumption was overcome, requiring Mrs. Petrocelli to come forward with proof of a causally related death.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07058.htm

Workers’ compensation benefits discontinued upon individual’s retirement based on a finding that he had “removed himself from the labor market”

Workers’ compensation benefits discontinued upon individual’s retirement based on a finding that he had “removed himself from the labor market”

Richardson v Schenectady City School Dist., 2012 NY Slip Op 05230, Appellate Division, Third Department

Dana Richardson objected to a Workers' Compensation determination that he had voluntarily removed himself from the labor market and denied his claim for workers' compensation benefits.

Richardson, a health teacher for the Schenectady City School District, sustained a variety of compensable injuries, including injuries to his head and back, while breaking up a fight between students in February 2006. In December 2008, he submitted a letter to the school district advising it that he would be retiring effective June 2009.

After the effective date of Richardson’s retirement, the school district and its workers' compensation carrier moved to suspend benefits based upon Richardson's “voluntary withdrawal from the labor market”. Ultimately, Workers' Compensation ruled that Richardson had, indeed, withdrew from the labor market and as a result was no longer entitled to awards upon his retirement in 2009.

The Appellate Division affirmed Workers' Compensation’s decision, explaining that “Whether [Richardson’s] retirement constituted a voluntary withdrawal from the labor market presented a factual issue for the Board, and its determination will not be disturbed if supported by substantial evidence.” In this instance Workers' Compensation relied on the report of a physician who performed an independent medical examination and opined that, while Richardson suffered from a moderate to marked disability, he was capable of working in a modified duty capacity.

Another element that was considered: Richardson’s letter informing the school district indicated that “he was taking advantage of a very favorable retirement incentive.” Richardson did not indicated that his physical disabilities played a role in his decision to retire and, in addition, he testified that he never discussed retirement with his doctors, did not advise the employer that he was retiring due to his disabilities and never asked for an accommodation to return to work within his restrictions.

Although there was “evidence that may have supported a different result,” the Appellate Division said that the determination was supported by substantial evidence and thus would not be disturbed.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05230.htm

Treating groups in the collective bargaining unit differently does not always constitute to a violation of the union’s duty of fair representation

Treating groups in the collective bargaining unit differently does not always constitute to a violation of the union’s duty of fair representation

Calkins v Police Benevolent Assn. of N.Y. State Troopers, Inc., 55 AD3d 1328

Thomas E. Calkins and five other retired State Troopers were among some 72 retirees rehired as "Special Troopers" on a temporary basis in 2001. They commenced this lawsuit in an effort to recover wage and benefit increases negotiated by the Police Benevolent Association of New York State Troopers [PBA] pursuant to a collective bargaining agreement (CBA) between it and the State of New York

Calkins charged the PBA violated its duty of fair representation as the exclusive bargaining agent for the Special Troopers as a result of the PBA excluding the Special Troopers from expanded duty pay and increases in longevity pay in an effort to obtain a substantial increase in longevity pay for the other State Troopers in the unit represented by the PBA. The Special Troopers’ exclusion was reflected in Memorandum of Agreement signed by the PBA and the State and subsequently ratified by PBA’s membership.

Supreme Court granted the PBA’s motion for summary judgment dismissing the Calkins' action and Calkins appealed.

The Appellate Division commence its review of the appeal by noting that in order “To establish that a bargaining agent breached its duty of fair representation, a plaintiff must show that the bargaining agent's conduct was arbitrary, discriminatory, or in bad faith,” citing Civil Service Bar Assn., Local 237 v City of New York, 64 NY2d 188. To do so, said the court, the complaining party must provide substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate objectives of the collective bargaining representative.

Here, however, the fact that the PBA treated the Special Troopers differently from other State Troopers represented by it in its negotiations for a new collective bargaining agreement does not amount to a violation of the duty of fair representation. The court found that the PBA “met its initial burden on the motion by establishing that it undertook ‘a good-faith balancing of the divergent interests of its membership and [chose] to forgo benefits which may be gained for one class of employees in exchange for benefits to other employees.’"

Further, said the Appellate Division, the record demonstrates that the PBA did not misrepresent its negotiating position. A "Contract Update" memorandum sent to its members expressly stated that the Special Troopers were excluded from "all new monetary aspects of the contract."

As the record before it did not demonstrate that the PBA’s conduct was arbitrary, discriminatory or in bad faith, the Appellate Division sustained the lower court’s granting the PBA’s motion for summary judgment.

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

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07368.htm