Some decisions concerning using civil service eligible lists

Some decisions concerning using civil service eligible lists

NYPPL readers have asked about "using civil service eligible lists" involving the following situations. As these questions may be of general interest, the responses are summarized below:


Expediting holding an examination

An individual on an eligible list was not entitled to an expedited medical and psychological examination before the existing eligibility list expires. Puntillo v. Abate, 205 A.D.2d 304.

Selection of the highest person on an eligible list

Rule of three upheld with respect to passing over a "higher scoring applicants." Cassidy v. Munic. Civil Serv. Cmsn. of City of New Rochelle, 37 N.Y.2d 526. 

However, appointing authorities may make appointments by selecting individuals for appointment "in rank order," referred to as "the rule of the list," or “the rule of one,” a process typically agreed to in the course of collective bargaining.

N.B. The “rule of one” is followed when making an appointment from a preferred list [Civil Service Law §82]. In contrast, with respect to appointments from reemployment rosters [CSL 82-a] and placement rosters [CSL 82-b] the names of those eligible for appointment from such rosters “shall be certified therefrom with equal ranking for appointment” thereby permitting the appointing authority to select any individual on such a roster without regard to his or her “seniority.”

Breaking ties in an examination: It is lawful to use social security numbers to rank applicants with the same numerical scores but it would be wrong to rank candidates based on their raw scores on the pass/fail portions of a qualifying examination. Napoli v. Levitt, 176 A.D.2d 668.

Appointing authority may not summarily terminate an individual’s General Municipal Law §207-c disability benefits

Appointing authority may not summarily terminate an individual’s General Municipal Law §207-c disability benefits
Kempkes v Downey, 53 AD3d 547

The Chief of Police of the Village of Bronxville suspended the full-salary payments being made to a Bronxville police officer while he was on disability leave pursuant to General Municipal Law §207-c, advising the officer that he would be suspended without pay pending a disciplinary hearing.

The officer sued, contending that the Village was obligated to pay his disability benefits pursuant to General Municipal Law §207-c pending an evidentiary hearing, because the benefits conferred under General Municipal Law §207-c constitute a vested property interest. Supreme Court granted the officer’s petition.

The Appellate Division affirmed the Supreme Court's decision, commenting that “The payment of benefits that have been conferred pursuant to General Municipal Law §207-c constitutes a protected property interest.” 

Significantly, the Appellate Division rejected the Village’s argument that the Westchester County Police Act (Chapter 891, Laws of 1972), "takes precedence" over General Municipal Law §207-c. In this instance the court said that the pertinent issue was whether General Municipal Law §207-c creates a protected property interest in disability benefits such that a predeprivation hearing must be held, even if the Act generally allows for the suspension of a police officer's salary prior to a disciplinary hearing.

The constitutional guarantee of due process provided a recipient of benefits under General Municipal Law §207-c requires that an evidentiary hearing prior to the deprivation of such benefits. Accordingly, said the court, the Village may not discontinue the payment of General Municipal Law § 207-c benefits as a disciplinary sanction without a prior evidentiary hearing.

As the officer had not been given such a hearing, the court prohibited Bronxville from reducing, terminating, or suspending his §207-c benefits “until a final determination of the disciplinary charges has been made after an evidentiary hearing held upon notice.”

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/employer-may-not-summarily-terminate.html

Standards used in higher education for granting or denying faculty members tenure not applicable to faculty in a primary or secondary school

Standards used in higher education for granting or denying faculty members tenure not applicable to faculty members seeking tenure in a primary or secondary school

Donnelly v Greenburgh CSD #7, USCA, Second Circuit, Docket No. 11-2448-CV

Edward Donnelly, a probationary teacher employed by Greenburgh, challenged the school district’s decision denying him tenure.

One of the issues addressed by Second Circuit in adjudicating Donnelly’s appeal of the District Court’s granting the school district’s motion for summary judgment dismissing his petition concerned the magistrate judge’s conclusion that Donnelly he had not shown that he was qualified for tenure "under the standard ... applied to plaintiffs complaining of a discriminatory denial of tenure in the context of colleges and universities," as set out in Zahorik v. Cornell University, 729 F.2d 85.

The district court held that Donnelly had failed to demonstrate his qualification for tenure under Zahorik.  Considering that issue “dispositive,” the district court did not address Donnelly’s other arguable claims [see Donnelly, 2011 WL 1899713, at 1]. 

The Circuit Court noted that typically "a plaintiff-employee challenging an adverse employment action as discriminatory or retaliatory need not do much to establish his qualification for the position he holds or seeks." It then commented that it had previously ruled that "in the related context of employment discrimination, 'the qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal; plaintiff must show only that he possesses the basic skills necessary for performance of the job.'" The district court, however, had held Donnelly, to a much higher standard.  

The district court, said the Circuit Court, concluded that, in order to show that “he was qualified for his position,” Donnelly must meet “the exacting standard [the Second Circuit has] applied in the context of allegations of discriminatory denial of tenure to university professors.”

Whatever the merits of that analysis in the university context, however, said the court, "neither we nor any other appellate court we have identified has ever applied the standards Zahorik pronounced to teachers denied tenure in elementary or secondary schools.  We decline to do so now." 

The Circuit Court ruled that while both university and high-school teachers may be awarded “tenured” positions that provide long-term employment and protections against arbitrary dismissal, “the two contexts have very little in common.” 

Although both high school teachers and scholars at universities and colleges are subject to individual performance evaluations at a predetermined stage of their careers that can lead either to the tenure or “to adverse employment events,” the Second Circuit said that “subjecting those two processes to the same analysis in the face of allegedly unlawful denial of promotion does not logically follow.” 

Concluding that Donnelly had presented “a genuine issue of material fact as to whether he worked enough hours to be eligible for FMLA leave; (2) the standard governing our review of allegedly unlawful university tenure denials is inapplicable to such denials in public high schools; and (3) [Donnelly] has adduced sufficient evidence of FMLA retaliation to survive a motion for summary judgment” the Circuit Court reversed the district court’s decision and remanded the matter for further consideration.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/95201dab-a25f-41ab-940d-66738c3d9032/1/doc/11-2448_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/95201dab-a25f-41ab-940d-66738c3d9032/1/hilite/

Prior litigation does not bar revaluation of disabled employee’s ability to perform the duties of the position

Prior litigation does not bar revaluation of disabled employee’s ability to perform the duties of the position
Bett v City of Lackawanna, 53 AD3d 1097

A firefighter was disabled, preventing him from performing his duties as a firefighter and he was paid him his full salary until he was terminated after he failed to report to work for light duty.

The firefighter sued and the court found that he was entitled to continue receiving his salary because Lackawanna had never made a determination pursuant to General Municipal Law §207-a (3) that he was medically able to perform light duties [see Bett v City of Lackawanna, 132 Misc 2d 630, affirmed 132 AD2d 951, 76 NY2d 900).

In this subsequent action the firefighter contended that Lackawanna is barred by principles of res judicata or collateral estoppel from now determining whether he is medically able to perform light duty work pursuant to General Municipal Law §207-a(3).

The Appellate Division rejected his argument. While Lackawanna could not discharge the firefighter because he failed to report for light duty work as it had not establish at that time that he was medically able to perform such work, Lackawanna is not precluded by that prior litigation from now evaluating the firefighter's medical condition. Indeed, said the court, it is because the firefighter is receiving the full amount of his "regular salary" pursuant to §207-a (1), he is required to undergo periodic medical evaluations.

The court also dismissed the firefighter’s claim that “the principles of equity and fairness” bar Lackawanna from ordering him to perform light duty work.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/prior-litigation-does-not-bar.html

Neither confusion concerning the administrative procedure nor an agency employee's incorrect information toll the running of the Statute of Limitations for filing an appeal

Neither confusion concerning the administrative procedure nor an agency employee's incorrect information toll the running of the Statute of Limitations for filing an appeal

Smith v Commissioner of Labor, 2012 NY Slip Op 05887, Appellate Division, Third Department

An applicant for unemployment insurance benefits received two notices of rejecting his claim for benefits.  

In response to his filing a request for an administrative hearing challenging the denial of his claim, an Administrative Law Judge ruled that the request for the hearing was untimely filed. The Unemployment Insurance Appeals Board affirmed the ALJ’s decision and the applicant challenged the Board's ruling.

The Appellate Division sustained the Board’s ruling, noting that §620(1)(a) of the Labor Law provides that in the event an applicant for unemployment insurance benefits is dissatisfied with an initial determination, he or she must request a hearing within 30 days unless physical or mental incapacity prevents him or her from doing so.

In this instance the applicant admitted that he had received the notice of determination shortly after it was mailed and was aware of the 30-day time limit for requesting a hearing.

Noting that the applicant had testified that he failed to request a hearing within 30 days “because he thought he needed to wait until his summer employment ended to do so, and he stated that he received advice to that effect from Department of Labor employees following the initial denial of his application for benefits,” the Appellate Division held that “neither claimant's confusion regarding the two notices … nor the erroneous advice from the Department … provides a basis for us to disturb the Board's decision.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05887.htm

Employee’s claim that she did not receive notice of disciplinary charges mailed to her rebutted by employer’s evidence of proper mailings

Employee’s claim that she did not receive notice of disciplinary charges mailed to her rebutted by employer’s evidence of proper mailings
Katz v Board of Educ. of City School Dist. of City of N.Y., 2008 NY Slip Op 31935(U),  Supreme Court, New York County, Judge: Shirley Werner Kornreich [Not selected for publication in the Official Reports]

The New York City Board of Education [BOE] sent a “notice of charges” to a tenured teacher. The “notice” was sent by certified mail, return receipt requested and by regular mail. The certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned. BOE subsequently sent a written statement detailing the Charges against the teacher in accordance with Education Law §3020-a by certified mail, return receipt requested, and by regular mail. Again the certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned. A third mailing was sent via certified mail, return receipt requested, and by regular mail. This time neither copy was returned to DOE.

Ultimately a Disciplinary Panel held a hearing in absentiaand the teacher was found guilty of the charges and terminated. A letter advising the teacher of her dismissal was mailed to the same address used to send all of the previous letters to the teacher who subsequently acknowledges receiving it and filed a claim with BOE seeking reinstatement retroactive to the date of her termination, along with restoration of benefits.

When BOE refused to reinstate her the teacher filed a petition seeking a court order directing BOE to reemploy her and award her back salary and benefits contending that she never received the regular mailings of the Notice of Charges and the written statement detailing the Charges “because mail often gets lost in her large apartment complex.” Additionally, said the court, the teacher “denies deliberately ignoring the certified mail and maintains that she did not receive notice to pick it up [and] if she had received the Notice of Charges or the actual Charges, she would have requested a hearing in a timely fashion.”

Judge Kornreich said that “The standard in an Article 78 proceeding, the court’s role is to determine whether the challenged administrative action had a rational basis or whether it was an arbitrary and capricious action [and] the administrative action must be upheld unless it ‘shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a law.”

The court found that BOE “properly mailed multiple copies of the Notice of Charges and the actual Charges. Only the certified mail copies were returned, and they were returned as unclaimed, indicating that the teacher failed to pick them up from the post office, not that they were improperly sent. Given BOE’s proof of mailings, the court was not persuaded by the teacher’s statement that she did not receive the Notice of Charges or the Charges.

In the words of the court, the teacher’s “bald assertion of non-receipt is insufficient to overcome the presumption that properly sent mail is received.” Accordingly, Judge Kornreich decided that it was not arbitrary or capricious for BOE to proceed with the inquest after properly mailing multiple letters informing the teacher of the situation and dismissed her petition.