Employer met its burden of showing employee failed to establish her age discrimination, hostile work environment, constructive discharge and retaliation claims

Employer met its burden of showing employee failed to establish her age discrimination, hostile work environment, constructive discharge and retaliation claims

2012 NY Slip Op 08248, Appellate Division, First Department

In this action, the plaintiff [P] alleged that she was the target of unlawful age discrimination, served in a hostile work environment, and was subjected to constrictive discharge and retaliation.

The Appellate Division sustained the Supreme Court’s dismissal of the P’s petition, finding that the employer had met its burden of demonstrating P failed to establish her claims of age discrimination, hostile work environment, constructive discharge, and retaliation.

The Appellate Division, with respect to P’s unlawful discrimination claim, explained that there was no evidence that P suffered from an adverse employment action. The assignment of P to certain non-supervisory tasks ordinarily performed by teachers constituted "merely an alteration of her responsibilities and did not result in a materially adverse change,' since [she] retained the terms and conditions of her employment, and her salary remained the same."*

The court said that P failed to raise a triable issue of fact as to her hostile work environment claim, since the alleged conduct and insults by her employer and coworkers were not "sufficiently severe or pervasive to alter the conditions of [her] employment"

Addressing P’s claim of constructive discharge, the court said that standard for establishing "constructive dismissal" is higher than the standard for establishing a hostile work environment, “where, as here, the alleged constructive discharge stems from the alleged hostile work environment.” As P failed to raise a triable issue of fact with respect to her hostile work environment claim, "her claim of constructive discharge also fails.” 

Finally, the Appellate Division held that with respect to P's retaliation claim in found no evidence of an adverse employment action resulting from her filing of a notice of claim against the employer nor was there any evidence of a causal connection between P's commencement of litigation and the allegedly adverse actions against her, commenting that the conduct at issue began months before P filed the notice of claim

* As to P’s complaint alleged disciplinary memoranda in her file, threats of unsatisfactory ratings, disciplinary meetings and allegations of corporal punishment, these did not constitute adverse employment actions as P received "satisfactory end-of-year performance rating[s], and none of the [alleged] reprimands resulted in any reduction in pay or privileges."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08248.htm

Imposing a greater penalty than that recommended by a disciplinary hearing officer

Imposing a greater penalty than that recommended by a disciplinary hearing officer
2012 NY Slip Op 08219, Appellate Division, Third Department

Disciplinary charges were filed against a correction corporal [P] alleging that P struck an inmate across the face with an open hand fracturing the inmate's nose while the inmate allegedly was handcuffed and apparently intoxicated.

In the course of the disciplinary hearing P admitted that he struck the inmate and a surveillance video that recorded the incident was admitted into evidence. The Hearing Officer sustained the charges and imposed as penalty a 30-day suspension without pay.

The Ulster County Sheriff adopted the findings of the Hearing Officer as to P’s guilt but concluded that the appropriate penalty was termination of P's employment with the Sheriff's Department.

Supreme Court dismissed P’s Article 78 petition seeing to vacate his dismissal notwithstanding his “unblemished record of employment with the Department” and P appealed.

The Appellate Division sustained the lower court’s ruling, indicated that its review of the penalty imposed was "limited to whether the penalty is so disproportionate as to be shocking to one's sense of fairness" – the so-called Pell Doctrine [Pell v Board of Education, 34 NY2d 222].

Concluding the P’s dismissal was not shocking to one's sense of fairness given the supervisory nature of his position in the Department and the fact that when this incident occurred, the inmate was handcuffed and under restraint, the court explained that the Sheriff had the right, in determining the penalty to be imposed, to take into account that P did not fully disclose what transpired in the Department's official report, including the fact that he had struck the inmate while he was under restraint.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08219.htm

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Unambiguous contract of employment language that is inconsistent with the employer’s policy nevertheless controls

Unambiguous contract of employment language that is inconsistent with the employer’s policy nevertheless controls

Chatelle v North Country Community Coll, 2012 NY Slip Op 08215, Appellate Division, Third Department

When North Country Community College hired Shane Chatelle as its Facilities and Special Projects Manager in 2004, the College’s President provided Chatelle with a letter setting forth his salary and enclosing a copy of the resolution of its Board of Trustees approving the appointment together with a written statement of the Board's "management confidential"* staff policy “purporting to provide,” that among other benefits, that Chatelle would be compensated for up to 180 days of accumulated sick leave upon his severance from employment.

In 2011, Chatelle resigned from his position and requested compensation for his accumulated sick leave. The College, claiming that, despite the statement provided to him upon his appointment, its actual policy authorized compensation for accrued sick leave only upon retirement.

Chatelle sued, contending breach of contract, among other things. Supreme Court granted Chatelle’s motion in part, awarding him $44,114.96 in damages for breach of contract but dismissed his remaining claims. Chatelle and the College “cross appealed” the Supreme Court’s ruling.

The Appellate Division said that the written statement provided to Chatelle upon his employment indicated that he was entitled to "the benefits afforded by the existing [m]aster [a]greements except where modified or defined by the following [benefits]."

With regard to the sick leave benefit, the statement provided that Chatelle was entitled to 30 sick days per year, cumulative to 180 days and "[a]t [the] time of severance sick leave will be compensated."

Although the College, relying on extrinsic evidence, argued that the statement given to Chatelle was in error and that the Board had intended to adopt a policy that only compensated for sick leave at retirement, the Appellate Division said that had “no reason to consider this [extrinsic] evidence because the statement's language is clear and unambiguous.”

Accordingly, said the court, the College is bound by the terms of the writing provided to Chatelle as part of his employment contract “and may not rely on its unilateral mistake to void the agreement,” explaining that the text of the statement is clear and Chatelle does not rely on past practice nor claim “estoppel to enforce his contractual right.”

The Appellate Division, however, modified Supreme Court’s judgment granting Chatelle $44,114.96 as payment for his unliquidated sick leave accruals by reducing the award to $4,770, “representing [Chatelle 's] 159 accrued sick days at $30 per day."

* Presumably Chatelle was designated "managerial" or "confidential" within the meaning of  §201.7 of the Civil Service Law [The Taylor Law] upon his appointment.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08215.htm

Limiting the pool of eligibles for a promotion examination to enhance the chances of provisional employees for permanent appointment violates Article VI, §6, of the State Constitution

Limiting the pool of eligibles for a promotion examination to enhance the chances of provisional employees for permanent appointment violates Article VI, §6, of the State Constitution

Ulster County Sheriff's Employees Assn., CWA Local 1105 (Ulster County Sheriff's Dept.), 2012 NY Slip Op 08213, Appellate Division, Third Department

This appeal flows from Supreme Court’s granting the Ulster County Sheriff’s Employees Association’s  CPLR 7510 petition seeking to confirm an arbitration award.

The Association, in response to Ulster County’s changing the minimum qualifications for eligibility for the promotion examination to Assistant Warden by excluding correction sergeants* as eligible employees for the examination, had filed a contract grievance contending that this change by the county personnel officer violated the parties' collective bargaining agreement [CBA]. 

Ultimately the grievance was submitted to arbitration.

The question presented to the arbitrator: "Did the County violate the preamble and/or Article 5 of the CBA when it excluded [those serving in the] title of correction sergeant from being eligible to take the 2009 exam for Assistant Warden? If so, what shall be the remedy?"

The arbitrator found that the County violated the CBA “when it excluded correction sergeants from the eligible list” and, as the remedy,  

[1] Directed that the results of the 2009 exam be annulled;** and

[2] Directed that a new exam be given for which "correction sergeants with 36 months of permanent competitive class status would be eligible."

In sustaining the Supreme Court's confirming the arbitrator’s award, the Appellate Division applied the following guidelines:

1. In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role;

2. An arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice; and.

3. A court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The court rejected the County’s argument that the arbitrator's award violated public policy and that it conflicted with the Civil Service Law because it “unduly interferes with the authority of the County's personnel officer to establish minimum qualifications for positions in the Sheriff's Department.”

The Appellate Division explained that an arbitration award may only be vacated on public policy grounds [1] "where a court can conclude, without engaging in any extended factfinding or legal analysis, that a law prohibits, in an absolute sense, the particular matters to be decided, or [2] that the award itself violates a well-defined constitutional, statutory or common law of this State" and [3] "judicial restraint under the public policy exception is particularly appropriate where, as here, the case involves arbitration pursuant to a collective bargaining agreement."

Noting that the County's personnel officer had the authority to establish minimum qualifications for promotion to job titles in county government, the Appellate Division said that it did not follow that such determinations are immune from oversight or review.

In this instance, said the court, the arbitrator determined that the change was made to increase the chances that two correction lieutenants who had been provisionally appointed as assistant wardens would ultimately receive permanent appointments to that position.

The court said the it agreed with the arbitrator’s conclusion that "[t]he decision to eliminate [c]orrection [s]ergeants from the pool of candidates [was] solely to increase the odds of the provisional candidates [being appointed permanently to the position] runs afoul of the competitive process envisioned by the Civil Service Law" and violated the State's constitutional provision requiring that civil service positions be filled "according to merit and fitness," citing Article V, §6, of the State Constitution.

* This change resulted in limiting eligibility for the promotion examination to correction lieutenants having at least 12 months of permanent service in the title.

** Presumably this directive resulted in the vacating of all permanent appointments made from the eligible list resulting from the 2009 examination for Assistant Warden.

  

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08213.htm

NYPPL summaries most often read during the month of November 2012

NYPPL summaries most often read during the month of November 2012

The following were the five case summaries most often read by the 16,138 visitors to this LawBlog during the month of November 2012.

The legal distinction between domicile and residence at:

http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html

Essentials of the "Pickering Balancing Test” at:

http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member at:

http://publicpersonnellaw.blogspot.com/2011/04/school-board-member-seeking-removal-of.html

Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law at:

http://publicpersonnellaw.blogspot.com/2011/04/ordering-correction-officer-to-submit.html

and

Court finds Pension Board's failure discontinue the payment of disability retirement benefits obviates the “suspension” of the retiree’s benefits at:

http://publicpersonnellaw.blogspot.com/2011/04/court-finds-pension-board-failure.html

From the Office of the State Comptroller

From the Office of the State Comptroller

For the week of November 26 - December 2, 2012 

Unclaimed funds for New Yorkers in areas hard–hit by Superstorm Sandy

“Nearly $3 billion in unclaimed funds are waiting to be returned to New Yorkers who reside in areas devastated by Superstorm Sandy. I would like to return the money to the rightful owners,” New York State Comptroller Thomas P. DiNapoli said.

“In these difficult times we are seeing more than ever that every single dollar counts. I encourage New Yorkers who have been impacted by the recent storm to initiate the simple process of retrieving their unclaimed funds as they continue to rebuild.”

N.B. You can search for unclaimed funds being held in the Comptroller’s “Unclaimed Property Fund” by clicking on: https://ouf.osc.state.ny.us/ouf/

DiNapoli: Town of Hempstead Should Examine Animal Shelter Costs

Auditors found high operational costs at the Hempstead Animal Shelter among other problems, State Comptroller Thomas P. DiNapoli said Friday. The auditwas undertaken after requests by town residents and Nassau County District Attorney Kathleen Rice.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the audits of:

the Town of Butler;

the Town of Caneadea;

the East Islip Fire District;

the Town of Gates;

the Town of Jay;

he Town of Mamakating;

the City of Newburgh;

he North Bay Fire District;

the Village of Otisville; and,

the Town of Vienna.