Disciplinary action follows employee’s refusal to report to a new workstation

Disciplinary action follows employee’s refusal to report to a new workstation

New York City Human Resources Administration v Griffin, OATH Index # 941/12

An employee of the City of New York was reassigned* to a new location. She, however, continued to report to her old work location and then stopped reporting to work altogether.

This resulted in the individual's being served with disciplinary charges alleging that she had refused to report to her assigned workplace, insubordination and AWOL.

Rejecting the employee’s arguments in defense of her actions, including her claim that she wanted a reassignment to another location closer to her home, OATH Administrative Law Judge Kevin F. Casey found the employee guilty of the charges filed against her.

Judge Casey recommended that the individual’s employment be terminated.  

*N.B. Although the decision characterizes the movement of the individual from one workstation to a different workstation within the same agency as a “transfer,” it technically constituted a “reassignment.” The term "transfer" is used to describe a change of employment where the employee leaves the jurisdiction of one appointing authority and enters the jurisdiction of another, different, appointing authority. In contrast, the term "reassignment" is used to describe personnel change by the appointing authority within the same department or agency.

Except where there is a "transfer of function," transfers typically required the approval of both appointing authorities and the consent of the individual to be transferred [see Civil Service Law §70.1]. In contrast, a "reassignment" may be made without the agreement or consent of the employee concerned unless otherwise required by a collective bargaining agreement.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-941.pdf

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/