Termination of employee for poor attitude and aggressive behavior recommended

Termination of employee for poor attitude and aggressive behavior recommended

Triborough Bridge & Tunnel Auth. v. Bell, OATH Index No. 1635/08

 

A Bridge and Tunnel Officer drew his firearm and pointed it at a customer after the customer reached into a bag during a dispute at the Queens Midtown Tunnel tollbooth.

OATH Administrative Law Judge Alessandra Zorgniotti found that the employee’s use of his firearm was reasonable but recommended his dismissal because the incident stemmed from his proven discourtesy and unexplained refusal to process the customer's toll.

The ALJ found that the respondent's significant history of customer complaints relating to his poor attitude and aggressive behavior made him a threat to public safety.

The Doctrine of Maintenance and Cure provides seamen with a workers’ compensation type of benefit

The Doctrine of Maintenance and Cure provides seamen with a workers’ compensation type of benefit

Messier v Bouchard Transp., USCA, 2^nd Circuit, Docket #10-5181

The Doctrine of Maintenance and Cure has been compared to workers’ compensation benefits in that the duty arises from employment and “does not rest upon negligence or culpability on the part of the owner or master.” As the Second Circuit said in Weiss v. Cent. R.R. Co. of N.J., 235 F.2d 309, maintenance and cure has been called “a kind of nonstatutory workmen’s compensation” benefit.

Under the Doctrine, the owner of the vessel is obligated to provide food, lodging, and medical services to a seaman while in he or she is in service. The Doctrine entitles an injured seaman to three remedies —maintenance, cure, and wages. The general rule is that “maintenance and cure” is available for any injury or illness that occurs during a seaman’s service.

A seaman filed a complaint in federal district court asserting claims for negligence under the federal Jones Act* and for "maintenance and cure under general maritime law."** Ultimately he withdrew all claims other than those for “Maintenance and Cure.”

Reversing the district court’s dismissal of the seaman’s petition, the Circuit Court of Appeals said that “Maintenance” compensates the injured seaman for food and lodging expenses during his medical treatment. “Cure” refers to the reasonable medical expenses incurred in the treatment of the seaman’s condition while lost wages are provided in addition to maintenance on the rationale that “maintenance compensates the injured seaman for food and lodging, which the seaman otherwise receives free while on the ship.”

“The obligation to provide maintenance and cure payments,” however, “does not furnish the seaman with a source of lifetime or long-term disability income.” An eligible seaman is entitled to maintenance and cure only “until he [or she] reaches maximum medical recovery,” i.e., “until such time as the incapacity is declared to be permanent.”

Citing Farrell v. United States, 336 U.S. 511, the Circuit Court noted that the Supreme Court ruled that … “where a seaman has reached the point of maximum medical cure and maintenance and cure payments have been discontinued, the seaman may nonetheless reinstitute a demand for maintenance and cure where subsequent new curative medical treatments become available."

The Circuit Court than cautioned: “The analogy to workers’ compensation, however, can be misleading, because maintenance and cure is a far more expansive remedy. First, although it is limited to 'the seaman who becomes ill or is injured while in the service of the ship,' it is not restricted to those cases where the seaman’s employment is the cause of the injury or illness. '[T]he obligation can arise out of a medical condition such as a heart problem, a prior illness that recurs during the seaman’s employment, or an injury suffered on shore'.”

Further said the court, “the doctrine is ‘so broad’ that ‘negligence or acts short of culpable misconduct on the seaman’s part will not relieve the shipowner of the responsibility.’” Accordingly, the doctrine may apply even if a seaman is injured or falls ill off-duty or while on shore leave, so long as the seamen is “in the service of the ship,” which means he is “generally answerable to its call to duty rather than actually in performance of routine tasks or specific orders.”

Another difference pointed out by the court: a seaman may be entitled to maintenance and cure even for a preexisting medical condition that recurs or becomes aggravated during his or her service.

Accordingly, the Circuit Court remanded the matter to the district court to “proceed to trial on the amount of maintenance and cure due” the seaman.

* 46 United States Code 883.[See, in particular, 46 USC 30104, Personal injury to or death of seamen.]

** A seaman who is required to sue a shipowner to recover maintenance and cure may also recover attorney fees [Vaughan v. Atkinson, 369 U.S. 527].

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/cd687548-b977-4833-8f81-7edb94f3058a/2/doc/10-5181_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cd687548-b977-4833-8f81-7edb94f3058a/2/hilite/

Retired teacher ruled entitled to enroll new spouse in the District’s health insurance plan under the terms of the collective bargaining agreement

Retired teacher ruled entitled to enroll new spouse in the District’s health insurance plan under the terms of the collective bargaining agreement

Bower v Board of Educ., Cazenovia Cent. School Dist., 53 AD3d 967

Retired from his teaching position with Cazenovia Central School District, at which time he was enrolled as an individual participant in the district's group health insurance plan, the retired teacher subsequently married and asked the District to change his health insurance to family coverage so that his wife would be covered. The district refused, contending that a retired teacher is not permitted to change his or her health insurance coverage.

The retiree sued, arguing that (1) the applicable collective bargaining agreement permitted him to change his coverage and (2) the district's refusal violated the statutory moratorium against reducing health insurance benefits of retirees unless there was a corresponding reduction for active employees.

Supreme Court held that retiree had the right under the terms of the collective bargaining agreement to change his health insurance coverage to include his new spouse. The District appealed, only to the Appellate Division affirm the lower court’s ruling.

The Appellate Division noted that Article XXII of the agreement provided that "[a]ll bargaining unit personnel currently employed or retired from [the district] who are legally eligible may participate in the . . . health insurance program," and that Appendix G to the agreement, sets forth individual coverage and family coverage as the "two types of enrollment" available, pointed out that a section in the agreement entitled "ENROLLMENT CHANGES" recognized that "[c]hanges in your family status may make it necessary or desirable for you to change the coverage for which you are enrolled," and states, in relevant part, that "[y]ou may request a change from individual coverage to [f]amily coverage . . . [t]o provide coverage for a newly acquired spouse."

As there is nothing in the collective bargaining agreement to indicate that "you" in this provision was not intended to include retired employees, the Appellate Division said that “Reading the relevant provisions as a whole, we agree with Supreme Court that the agreement permitted the retiree to add his spouse to his health insurance.”

The full text of the decision is posted at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06418.htm

Appointing authority’s decision to terminate an employee found guilty of misconduct may not be set aside if supported by substantial evidence

Appointing authority’s decision to terminate an employee found guilty of misconduct may not be set aside if supported by substantial evidence
Guerrero v Scoppetta, 53 AD3d 615

The New York City Fire Commissioner, adopting the recommendation of a hearing officer, found a New York City Fire Department Emergency Medical Technician [EMT] guilty of a number of charges of misconduct and terminating his employment.

The Appellate Division said that the finding that finding that the employee was guilty of the charges was supported by substantial evidence.

Substantial evidence, said the court, is "less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt" and here New York City Fire Department records, the testimony of numerous witnesses and the EMT, and a videotape of the incidents on which the determination was based, provided "such relevant proof as a reasonable mind may accept as adequate"

Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence. The Appellate Division dismissed the EMT’s appeal, holding that as the Commissioner’s determination was supported by substantial evidence, it may not be set aside.

The full text of the decision is posted at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06375.htm

A factual demonstration to support allegations that an individual was denied a fair hearing by an administrative tribunal is critical to rebutting the presumption of honesty and integrity accorded to administrative bodies

A factual demonstration to support allegations that an individual was denied a fair hearing by an administrative tribunal is critical to rebutting the presumption of honesty and integrity accorded to administrative bodies

Dutrow v New York State Racing & Wagering Bd., 2012 NY Slip Op 05699, Appellate Division, Third Department

One of the issues in this appeal challenging a disciplinary action taken against an individual by the New York State Racing & Wagering Board was a claim that the target of a disciplinary action by the Board was deprived of a fair hearing as a result of the refusal of Board’s chair, John Sabini, to recuse himself from the proceeding.

Sabini, in addition to serving as the Board’s chair, was an unpaid officer of the Association of Racing Commissioners International, an organization devoted to maintaining a multi-jurisdictional database of licensed horse racing professionals' disciplinary histories.Sabini, however, had no prior official involvement with, and made no appearance in, this case stemming from his position with the Association. 

The Association’s president, however, had informed Sabini that a United States Senator's office had inquired about the case. The Association's president also had publicly urged the Board to assess individual’s "suitability to continue his participation in racing." The court, however, observed that [1] Sabini was not bound to follow any suggestions made by the Association or its president and [2] there was nothing in the record indicating that Sabini took any action based upon these communications or otherwise "gave the impression that [he] had prejudged the facts."

The Appellate Division said that such a “bare allegation” that these communications led to bias is insufficient absent "a factual demonstration to support the allegation . . . and proof that the [adverse] outcome flowed from it."

As the accused individual had failed, in the words of the court, "to rebut the presumption of honesty and integrity accorded to administrative bodies," the Appellate Division held “it cannot be said that he was denied a fair hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05699.htm

Employee terminated for violating employer’s written policy ineligible for unemployment insurance benefits

Employee terminated for violating employer’s written policy ineligible for unemployment insurance benefits
Pagan v Commissioner of Labor, 53 AD3d 964

The Unemployment Insurance Appeal Board disqualified an applicant for unemployment insurance benefits following his termination for accepting a designation to run as a candidate for the State Assembly, ruling that his employment was terminated due to misconduct.

The individual, employed by the New York City Housing Authority, had violated the Authority written policy prohibiting its staff members from running for political office in a partisan election.*

Noting that “It is well settled that "[v]iolation of an employer's reasonable policies may constitute disqualifying misconduct," the Appellate Division said that the Authority’s guidelines were established “to assure compliance with the Hatch Act (5 USC §1501 et seq.) and the City of New York’s Conflicts of Interest Board Rules.”

As the record indicated that the individual was aware of the Authority's guidelines prior to his termination and that he was afforded an opportunity to comply with the policy before any adverse action was taken against him by it, the court ruled that substantial evidence supported the Board's determination finding him guilty of disqualifying misconduct for the purposes of unemployment insurance benefits.

* A candidate seeking election to a school board is typically deemed to be seeking office in a “non-partisan” election.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06414.htm

Employee entitled to go for a cancer-screening examination without loss of pay or charge to leave accruals

Employee entitled to go for a cancer-screening examination without loss of pay or charge to leave accruals
Moran v City of Saratoga Springs, et al, 21 Misc 3d 195

In Cruz et al v Wappingers CSD, Supreme Court, Dutchess County, Judge James V. Brand, Index #2197 /08 [not selected for publication in the Official Reports] a State Supreme Court ruled that Civil Service Law §159-b* requires employees to be paid for absences for cancer-screening examinations without charge to leave accruals and ordered the school district to restore sick leave accruals to three of its employees whom the district forced to use leave accruals in connection with absences for breast cancer screening.

In Moran, State Supreme Court Judge Thomas D. Nolan came to the same conclusion.

An City of Saratoga Springs employee took an hour off during the workday from her position in the City's accounts department to have a mammogram and reported this "leave of absence" on her weekly time report. The City's payroll department, however, advised Moran that she would not be paid for the one hour "leave", but if she wanted to be paid, she could charge the time against her accrued sick, personal or vacation leave.
The employee charged her absence to her leave accruals.

The Civil Service Employees Association Local 1000 (CSEA) asked the City restore those two hours to her accrued sick leave, stating that the §159-b leave was "to be paid leave" and that the City was in violation of the Civil Service Law when it required to charge her leave accruals or be deemed "on unpaid leave." The City refused to restore the employee’s leave credits to her and CSEA sued.

Judge Nolan said that the City's interpretation, though plausible, does not further the law's principal goal of encouraging public sector employees to be regularly screened for breast cancer. “Certainly,” said the court, “the screening leave was not intended to result in any financial detriment to the employee.” In addition, the court pointed out that the State's Civil Service Department's interpretation is that the statute provides for paid leave for New York State officers and employees with respect to the State as an employer.

Finding that the “legislative history” of §159-b is clear, the court concluded that the Legislature intended not only that annual cancer screening examinations would be excused and not be charged against any other leave, but also, that it would be a "paid" leave.**

In support of his conclusions, Judge Nolan cited two recent trial level court decisions – Cruz v Wappingers Cent. School Dist., [supra] and Fringuello v Wappingers Cent. School Dist., (Sup Ct, Dutchess County, July 15,2008, Dolan, J., index No. 2231/08, [Not selected for publication in the Official Reports].

Judge Nolan ruled that the City's determination to deny the employee paid leave of absence in connection with her absence for breast cancer screening "is arbitrary and capricious and cannot stand." Granting CSEA’s petition, the court order the City “to credit two hours to [the employee’s] sick leave accruals.

* §159-b.1, Excused leave to undertake a screening for breast cancer, provides, in pertinent part: “Every public officer, employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system….”

** The court's role in interpreting legislation was summarized in Matter of Monroe County Pub. School Dists. v Zyra (51 AD3d 125, 130

Selected Reports issued by the Office of the State Comptroller during the week of July 16 - 22, 2012

Selected Reports issued by the Office of the State Comptroller during the week of July 16 - 22, 2012

Source: Office of the State Comptroller

DiNapoli to Audit SUNY Downstate Medical Center

New York State Comptroller Thomas P. DiNapoli announced Tuesday that his office has commenced an independent financial review of the financially–troubled State University of New York Downstate Medical Center and its affiliates.

DiNapoli: Queens Special Education Contractor Overcharged State $1.5 Million

Bilingual SEIT & Preschool Inc., a Queens–based provider of special education services, inappropriately charged New York City’s Department of Education by nearly $1.5 million for salaries, vehicle leases and items such as cosmetics and children’s furniture, according to an audit released Thursday by State Comptroller Thomas P. DiNapoli. The findings were referred to the Queens County District Attorney’s Office.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed an audit of the Mayfield Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed the following audits: the Clarksville Volunteer Fire Company; the Town of Homer; the City of Kingston Police Department; and, the Village of Sodus.

Comptroller DiNapoli Announces Upcoming Training for Local Officials

Two webinars providing critical training for local government officials will be held in August.

A webinar providing an Update on the Property Tax Cap and a Demonstration of Multiyear Financial Planning will be held on August 7th, from 2:00 p.m. to 4:00 p.m. Participants will learn about common errors made during the 1st year of calculating the property tax levy limit and tips for avoiding those errors. They will also benefit from a demonstration of OSC’s multi–year financial planning tool. Local officials should register at: https://www3.gotomeeting.com/register/838061582.

An Information Technology Governance webinar will be held on August 15th, from 2:00 p.m. to 4:00 p.m. Participants will gain an understanding of their responsibilities in managing government technology systems and how to properly protect electronic resources, data, and access to systems. Local officials should register at: https://www3.gotomeeting.com/register/213023830.