Suspension without pay for 270 days disciplinary penalty

Suspension without pay for 270 days disciplinary penalty

Is suspending a employee found guilty of a number of charges of misconduct without pay for 270 days lawful? After all, the Section 75 of the Civil Service Law limits such a suspension without pay for a period not to exceed two months.

The Appellate Division, Second Department, said it was appropriate under the circum­stances and sustained a 270-day suspension without pay disciplinary penalty imposed by the appointing authority on an individual after he was found guilty of:

1. Two counts of engaging in conduct unbecoming an officer,

2. One count of using employer’s equipment other than in the course of official business,

3. Four counts of engaging in unlawful conduct,

4. Two counts of failing to treat as confidential the official business of the employer, and

5. One count of making or submitting, or causing to be submitted, a false official communication, record, or statement.

The Appellate Division said that the officer's guilt with respect to these charges was supported by substantial evidence in the record.

As to the nature of the penalty imposed, the court said that the Police Department's determination regarding appropriate internal discipline to be imposed is entitled to great deference and, "under the circumstances of this case, will not be disturbed."

Although 75 of the Civil Service Law limits the suspension without pay for a period of not to exceed two months, the Appellate Division, citing Coscette v Town of Wallkill, 281 AD2 479, ruled that the penalty of suspension without pay for 270 days was permis­sible pursuant to Civil Service Law 76(4) and Nassau County Administrative Code 8-13.0.

Section 75 provides, as alternative disciplinary penalties, suspension without pay for not to exceed two months, punishment consisting of either a reprimand; or a fine not to exceed $120; or demotion in grade and title; or dismissal. In contrast, an arbitrator setting a disciplinary penalty pursuant to a contract disciplinary procedure is usually authorized to impose an "appropriate penalty" and is not limited to those prescribed in a statute such as Section 75 of the Civil Service Law.

The decisions are posted on the Internet at:

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=2&origin=Search&query=%22296+AD2D+575%22&rlt=CLID_QRYRLT4874037579110&rltdb=CLID_DB6435037579110&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA7236537579110&tempinfo=word&vr=2.0

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&mt=Westlaw&n=5&origin=Search&query=%22302+AD2D+600%22&rlt=CLID_QRYRLT2327351539110&rltdb=CLID_DB7388350539110&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA4989950539110&sv=Split&tempinfo=word&vr=2.0

[Leave to appeal denied, 3 N.Y.3d 611]

Determining seniority for the purposes of layoff

Determining seniority for the purposes of layoff
Decisions of the Commissioner of Education, Decision 16,411

As a result of “budgetary constraints," the school board voted to abolish four positions in the elementary tenure area. 

One of the teachers laid off challenged the board determination, contending district improperly excluded two sixth grade teachers from the elementary tenure area seniority list and that those teachers were the least senior in that tenure area. Claiming she had greater seniority in the elementary tenure area, the teacher appealed the school board action to the commissioner of education.*

One the factors that provided critical to the teacher's claim of having greater seniority than the two sixth grade teachers cited by her was that she had been granted an unpaid 23-day leave for maternity during her probationary period.

The Commissioner, noting that Education Law §3013(2) provides that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued” and that Section 30-1.1(f) of the Rules of the Board of Regents defines seniority as follows: “Seniority means length of service in a designated tenure area ...,”  said that the principal issue in this appeal is whether teacher was one of the four least senior teachers in the elementary tenure area. 

With respect to the two teachers the board had “excluded” from the elementary tenure area, the Commissioner found that both were serving in the elementary tenure area and thus both should have been included on the seniority list for that tenure area. 

This ruling, however, did not change the result insofar as the teacher’s appeal was concerned.

The Commissioner pointed out that the record demonstrated that the teacher was still the least senior teacher in the elementary tenure area as a result of her 23 days of unpaid leave taken during her probationary period, noting that “It is well settled that days spent on unpaid leave of absence may not be included in determining seniority.”**

With respect to such absence, one of the arguments advanced by the teacher in support of her appeal was that because she had taken the unpaid leave pursuant to the Family Medical Leave Act [FMLA], her absence must still be included in calculating her seniority.

The Commissioner disagreed, noting that the FMLA specifically provides that an employee “may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave.”*** The Commissioner quoted from the U.S. Department of Labor's FMLA guidelines wherein it states “The FMLA does not entitle an employee to the accrual of any seniority (or employment benefits) during any period of FMLA leave [.]” 

Finding that the teacher “served 23 days less” than one of the sixth grade teachers and “at least three days less” than the other sixth grade teacher, the Commissioner concluded that the teacher “was the least senior teacher in the elementary tenure area and [thus] was properly excessed.”

* The Commissioner’s decision notes that the superintendent notified the teacher of “an opening in an elementary teaching position” but the teacher had declined reappointment to the position offered.

** With respect to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, 4 NYCRR 4.5(g) grants the appointing authority discretion to excuse certain absences during the individual’s probationary period. However, the minimum and maximum periods of the probationary term of the employee are to be extended by the number of workdays of his or her absence[s] that are not so excused. Many local civil service commissions have adopted a similar rule.

*** See 29 C.F.R. §825.215(d)(2).

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16411.html

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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The New York State Teachers’ Retirement System has a duty to correct errors in the computation of retirement allowances

The New York State Teachers’ Retirement System has a duty to correct errors in the computation of a member's retirement allowance

During the three years immediately prior to retirement, a teacher* participated in the school district’s "Senior Teacher Program,” a three-year program available upon request on a one-time basis to teachers with at least 15 years of employment with the school district. A participating teacher received a stipend of $12,000 per year in addition to his or her base salary and was required to complete preapproved annual projects. 

In this instance the stipend paid to the "participating teacher" was initially included in the calculation of the teacher’s final average salary for purposes of determining her retirement allowance by the New York State Teachers’ Retirement System [NYSTRS] upon her retirement from the school district.

NYSTRS subsequently determined that the stipend paid to the teacher in connection with her participation in the school district's "Senior Teacher Program" should have been excluded from its calculation of the teacher’s “final average salary” for the purposes of determining her appropriate retirement allowance as it constituted "nonregular compensation." When it sought to recoup the “overpayment” resulting from its  inclusion of the stipend in its initial calculation, the teacher sued.

Supreme Court dismissed the teacher’s petition and the Appellate Division affirmed the lower court’s ruling, noting that the retirement system was obligated to correct errors in its computation of retirement benefits. Further, said the court, the recoupment of funds erroneously paid by the retirement system was proper.

Considering the relevant regulation**provided that "[r]egular salary earned shall exclude termination pay and payments which are not part of the salary base and/or are not paid over a period of years; for example, bonuses and one-time-only increments," NYSTRS had concluded that the stipend paid to the teacher in connection with her participation in the school district's "Senior Teacher Program" did not constitute "regular salary earned" because:

1. The contract between the faculty and the school district specifically provided that the stipend was not to be included as part of a teacher's base salary;

2. The stipend was for work done in addition to and outside the scope of a teacher's regular duties; and

3. Participation in the program was available only once during a teacher's employment with the school district.

The Appellate Division said that it found that NYSTRS’s determination had a rational basis and, accordingly, sustained the administrative decision

* In this instance the teacher was a “Tier II” member of the New York State Teachers’ Retirement System.

** See 21 NYCRR 5003.1[a].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06355.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of September 24 - 30, 2012 [Click on the caption to access the full report]

DiNapoli Proposes Early Warning System To Identify Local Governments In Fiscal Stress

With a growing number of local governments facing significant fiscal stress, State Comptroller Thomas P. DiNapoli announced plans Monday to implement an early warning monitoring system that would identify municipalities and school districts experiencing signs of budgetary strain so that corrective actions can be taken before a full financial crisis develops.

DiNapoli Invests $2.5 Million From State Pension Fund in Ithaca–Based Printing Company CognitiveTPG

New York State Comptroller Thomas P. DiNapoli announced Tuesday that DeltaPoint Capital Management has acquired a majority stake in Ithaca–based CognitiveTPG, a supplier of point–of–sale transaction and barcode printers. The Common Retirement Fund is an investor in DeltaPoint through the In–State Private Equity Program. Photos are available here.

Empire State Plaza Assigns New Director After Audit Reveals Elevator Safety Lapses

Elevators at the Empire State Plaza went unrepaired for months despite 32 maintenance deficiencies, according to an auditreleased Thursday by State Comptroller Thomas P. DiNapoli. The audit prompted the Office of General Services to assign a new director and deputy director of plaza operations to properly oversee elevator maintenance.

DiNapoli: August Cash Report Shows Continued Economic Uncertainty

Tax receipts through August 2012 were $147 million below projections and $204.3 million below collections for the same period last year, reflecting continued volatile economic conditions, according to the August Cash Report released last Wednesday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the following audits:

Town of Evans;

Town of Fort Edward; and,

Town of Schodack.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the audit of the Ark Community Charter School.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli last Tuesday announced his office completed the following audits:

Department of Transportation;

New York State Thruway Authority;

Department of Health; Office for the Aging; and,

Office of Parks, Recreation and Historic Preservation.

Trial court may not substitute its judgment for that of the arbitrator when the record supports the arbitrator’s ruling

Trial court may not substitute its judgment for that of the arbitrator when the record supports the arbitrator’s ruling

Supreme Court, New York County, vacated, in part, an arbitrator’s finding that a tenured teacher guilty of disciplinary charges alleging sexual misconduct and dismissed certain specifications, vacated the penalty imposed by the arbitrator -- termination of the teacher's employment, and remanding the proceeding for a new hearing before a new arbitrator to determine if the teacher was guilty of the surviving allegations and for a redetermination of the penalty to be imposed in the event the new arbitrator found the teacher guilty of one or more of the surviving disciplinary charges and specifications.

The Appellate Division(1) reinstated the initial arbitrator’s finding of sexual misconduct and (2) reinstated the penalty imposed by the arbitrator, termination.

The court said that judicial review of the arbitrator’s award in this instance is limited to the grounds set out in CPLR §7511(b)1* as required by §3020-a(5) of the Education Law.

The court explained that where, as here, “the arbitration is compulsory,” the excess of power standard under CPLR §7511(b) includes review of "whether the award is supported by evidence or other basis in reason, as may be appropriate, and appearing in the record." Thus, the "determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78."

The Appellate Division said there was adequate evidence to support the arbitrator's conclusion that teacher committed sexual misconduct by performing an "action that could reasonably be interpreted as soliciting a sexual relationship" within the meaning of the relevant provisions in the collective bargaining agreement. By finding to the contrary, the Appellate Division said that Supreme Court “impermissibly substituted its own judgment for that of the arbitrator” by crediting the teacher’s testimony that had been rejected by the arbitrator.

In light of the evidence, the Appellate Division said that the penalty of termination, notwithstanding teacher's “prior lack of disciplinary history,” did not shock its sense of fairness.

* §7511 of the Civil Practice Law and Rules provides for “Vacating or modifying” an arbitration award. With respect to “Grounds for Vacating,” §7511 (b)1 provides for the vacation of an arbitration award in the event the court finds that the rights of the party challenging the award were prejudiced by: 

     (i) corruption, fraud or misconduct in procuring the award; or 

     (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or 

     (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or 

     (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06255.htm

Not all doctor visits constitute “medical treatment” for the purposes of the FMLA

 Not all doctor visits constitute “medical treatment” for the purposes of the FMLA

Jones v. C & D Technologies, Inc., USCA, 7^th Circuit, Docket No. 11-3400. 

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2012. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Jones had an approved FMLA-covered serious health condition requiring periodic treatment by his physician.  He asked for and was approved FMLA leave for an afternoon appointment to receive medical treatment by one of his physicians.  Although he was scheduled to work the morning, Jones did not show up to work.  Whether Jones timely called in his morning absence was in dispute.  Instead of working, Jones visited another of his physicians.  During the unscheduled morning visit, Jones ensured that his physician forwarded his medical records for his afternoon medical appointment.  As a result of a short conversation in the lobby, Jones also secured a prescription refill note from his doctor during his impromptu morning visit.  Jones was never examined or evaluated during the morning visit with his doctor.  Because he missed working his morning shift, Jones was terminated pursuant to the Company's attendance policy.

Jones sued alleging that his termination interfered with his FMLA rights.  Specifically, Jones argued that he received FMLA-covered "medical treatment" during his morning doctor visit, as evidenced by the prescription refill note.  The Company argued that Jones' morning visit was not "medical treatment" within the meaning of the FMLA. 

An employee is entitled to FMLA leave if she suffers from a "serious health condition" that renders the employee unable to perform the functions of the employee's position.  29 USC 2612(a)(1)(D).  Under the FMLA, an employee who must be absent from work to receive medical treatment for a serious health condition is considered "unable to perform the functions of the employee's position."  29 CFR 825.123(a)(emphasis added).  The parties do not dispute that Jones had an FMLA-covered serious health condition.  Instead, the case focused on whether Jones' impromptu morning visit with his physician constituted "necessary medical treatment."  

      

After initially noting that the statute does not define "treatment," the Court looked to the DOL regulatory definitions of "treatment" in sections 825.113(c) and 825.115 for guidance on the meaning of "treatment" in 825.123(a).  The Court concluded that 825.115 was not helpful in understanding the meaning of "treatment" in 825.123(a) because, while it refers to "continuing treatment," it fails to address the circumstances where a person actually receives medical treatment that prevents them from performing the functions of their position.  Similarly, while acknowledging the reference to a course of prescription medication as evidence of a "regimen of continuing treatment," the Court ultimately concluded that, while relevant to determining the existence of an FMLA-covered serious health condition, it was not helpful to determine whether an employee actually receives "treatment" that prevents him from performing his job.  According to the Court:

Many chronic conditions require a course of prescription medication, but the FMLA requires something more for an employee to become entitled to leave -- inability to perform her job functions.  A course of prescription medication and an inability to perform a job are not mutually exclusive.

Relying on its previous decision in Darst v. Interstate Brands Corp., 512 F.3d 903, 911-12 (7th Cir. 2008), the Court determined that treatment "includes examinations to determine if a serious health condition exists and evaluation of the condition," but not actions such as calling to make an appointment or scheduling substance-abuse rehabilitation."  Applying that standard, the Court concluded that Jones did not receive treatment preventing him from working that morning by visiting his doctor to ensure his referral to another lab was in order.  The Court also found that merely picking up a prescription refill note did not, under the circumstances, constitute FMLA-protected treatment.  The Court observed:

Although we can envision a scenario where obtaining a prescription note in connection with a physician's examination might constitute treatment, this case does not approach that hypothetical.  Here, Dr. Lubak never evaluated or examined Jones, and Jones even conceded in a deposition that he was never "physically examined" that morning.  Jones arrived at Dr. Lubak's clinic unannounced and appeared only to briefly speak with his physician in the office lobby. The entirety of Jones's interaction with Dr. Lubak consisted of the physician's acquiescence to refill a prescription.  There is simply no evidence that Jones was examined, and therefore treated, that morning.

Mr. Bosland Comments:  The decision of the Seventh Circuit is well reasoned.  To be covered by the FMLA, an absence to receive "medical treatment" under 825.123(a) requires, for the Seventh Circuit, the visit be "necessary" and a physical examination, which the Court equates with "treatment."  Jones' unscheduled, non-emergent morning doctor visit was not medically required.  Moreover, checking to ensure that medical paperwork was forwarded to a second doctor and securing a prescription refill after a brief lobby conversation with his physician, did not impress the Court as rising to the level of an "examination" and, therefore, treatment for purposes of the protections of the FMLA.  It will be interesting to see if other courts following the lead of the Seventh Circuit. 

The decision is posted on the Internet at:

http://www.ca7.uscourts.gov/tmp/LV0CM205.pdf

Suspension without pay during a pending disciplinary action

Suspension without pay during a pending disciplinary action
Elmore v Mills, 299 A.D.2d 545, Motion for leave to appeal denied, 9 N.Y.2d 509

Among the several issues considered by the Appellate Division, Third Department in Elmore case was the suspension of a tenured teacher without pay in the course of a disci­plinary action.

Plainview-Old Bethpage Central School District filed disciplinary charges against the educator pursuant to Section 3020-a of the Education Law. Section 3020-a.2(b) provides that in the event a teacher is suspended during pendency of the hearing, such suspension shall be with pay unless the teacher pleaded guilty to, or was convicted of, one of several enumerated crimes.

However, in this instance the Taylor Law contract between the district and the teacher union, in pertinent part, provided that “A teacher who has been suspended from school pursuant to Section 3020-a of the Educa­tion Law shall receive his/her regular full pay to which he/she would otherwise be enti­tled pursuant to … the Collective Bargaining Agreement [CBA] and all fringe benefits for a period of a maximum of fifteen (15) school months (11/2 years salary).... Thereafter, any suspension may be without pay.”

In December 1998, the District, relying on this provision in the CBA, suspended the teacher without pay, effective January 6, 1999, pending the outcome of the disciplinary hearing. The educator, however, had neither pleaded guilty to, nor was convicted of, any of the several crimes enumerated in Section 3020-a. Was the teacher's suspension without pay by the Dis­trict pursuant to the CBA lawful in view of the provisions of Education Law Section 3020-a.2(b)?

Although the Appellate Division declined to rule on this question, holding that because a final determination in the disciplinary action had been made and thus the issue was "moot," the court did elect to discuss a number of elements concerning the question of suspension without pay in a Section 3020-a proceeding. It said that:

A CBA may allow a school district to suspend its teachers without pay as long as the agreement's terms clearly manifest the parties' intent to do so, citing Board of Education of the City of Rochester v Nyquist, 48 NY2d 97.

The CBA relied upon by the District in this case clearly circumscribes a teacher's right to full pay during a protracted suspension.

The CBA provides for restoration of wages and benefits for any such period of leave without pay if the teacher ultimately is not terminated from employment but here the penalty imposed on Elmore was termination.

Thus, said the court, if the issue of the educator's suspension without pay was properly before it, it would find that this provision in the CBA was valid and that under the circumstances the District was authorized to suspend the teacher without pay as provided by the CBA.