An individual terminated pursuant to Civil Service Law §71 must be reinstated consistent with §71 once the individual has been found qualified to return to work by a medical officer selected by personnel department or civil service commission having jurisdiction

An individual terminated pursuant to Civil Service Law §71 must be reinstated consistent with §71 once the individual has been found qualified to return to work by a medical officer selected by personnel department or civil service commission having jurisdiction

Lazzari v Town of Eastchester, 2012 NY Slip Op 08052, Court of Appeals

A Town of Eastchester employee, Richard Lazzari, injured his neck, back, and both arms while performing his job duties. Eventually the Town placed Mr. Lazzari on workers’ compensation leave pursuant Civil Service Law §71 and ultimately the Town notified him that his employment with the Town wasterminated. Mr. Lazzari was also told that he had certain rights regarding reinstatement to his former position and the Town provided him with a copy of Civil Service Law §71.*

Subsequently Mr. Lazzari requested and obtained a review of his medical condition by the Westchester County Department of Human Resources [DHR]. DHR designated a physician to examine Mr. Lazzari and the physician determined that Mr. Lazzari was medically able to perform the duties of his position. Accordingly, DHR advised the Town that as "[t]he examining physician has concluded in his written report provided to this department that Mr. Lazzari is able to perform [his job] duties," Mr. Lazzari should be immediately restored to his position.

The Town Supervisor, however, requested that DHR send the Town a copy of the medical report, contending that "[i]n light of the apparently conflicting medical opinions, we are concerned about Mr. Lazzari's safety and that the interests of the Town and its residents will be imperiled if [he] cannot effectively perform the essential functions of his position."

In response, DHR advised the Town that it would not provide a copy of the requested report and again advised the Town that should immediately reinstate Mr. Lazzari to his former position.**

The Town neither reinstated Mr. Lazzari nor filed a Freedom of Information Law (FOIL) for the document. Further, the Town did not commence an Article 78 proceeding against the County to procure the medical documentation. Neither did the Town challenge the County's determination under Civil Service Law §71. As a result, Mr. Lazzari was required to take the initiative and filed an Article 78 petition seeking a court order compelling the Town to reinstate him.

Supreme Court granted Mr. Lazzari's petition and ordered the Town to reinstate him, reasoning that "i]gnoring the mandate of Civil Service Law §71 is not the appropriate mechanism for questioning [Mr. Lazzari's] condition or challenging the determination of [DHR]." The Town appealed and the Appellate Division reversed the lower court’s ruling on the procedural ground that DHR had not be named as a necessary party in the action and remitted the matter for further consideration with DHR's participation (see 62 AD3d 1002).

The Supreme Court, after revisiting the matter, concluded that Civil Service Law §71 does not provide for a challenge to the determination of the medical officer selected by the civil service commission or department and held the only available remedy was for the Town to institute its own Article 78 proceeding against DHR,. Supreme Court then noted that the Town failed to do so within the statutorily mandated time frame of four months.

Supreme Court then granted Mr. Lazzari’s petition and ordered the Town to reinstate him to his former position, and, in addition, ordered the Town to compensate him with back pay in accordance with Civil Service Law §77, retroactive to the date of DHR's initial letter directing Mr. Lazzari's reinstatement.

Still refusing to reinstate Mr. Lazzari, the Town appealed. The Appellate Division sustained the Supreme Court’s ruling, holding that Civil Service Law §71 did not require DHR to provide the Town with a medical certification or provide it with the underlying medical report (see 87 AD3d 534). In addition, the Appellate Division agreed that Mr. Lazzari was entitled to back pay as directed by Supreme Court.

The Court of Appeals affirmed the Appellate Division’s decision, explaining than when a municipal civil service commission or county personnel officer directs a municipal employer to reinstate an employee pursuant to a medical officer's determination of fitness pursuant to Civil Service Law §71, the municipal employer must immediately reinstate the employee and should it wish to challenge that determination, such a challenge must "take the form of an Article 78 petition."

As the coda to its decision, the Court of Appeals, Justice Pigott dissenting, said:

“After five years of litigation, the County's refusal to give the Town a copy of the medical report, and the Town's refusal to ask for it under FOIL, remain unexplained. The County does not suggest that it would have any ground for rejecting a FOIL request. It seems that a bit more common sense and less stubbornness on either side could have avoided years of trouble and expense. Since the parties have chosen to litigate, however, we must resolve the dispute, and we do so in the County's favor.

“On the issue of back pay, Civil Service Law §77 provides that an "employee who is removed . . . and who thereafter is restored to such position by order of the supreme court, shall be entitled to . . . the salary or compensation which he would have been entitled by law to have received in such position but for such unlawful removal...." The Town argues that because Mr. Lazzari was lawfully terminated and not unlawfully removed, and does not even challenge his initial termination, Civil Service Law § 77 does not apply. However, within the context of the statute there is no meaningful distinction between an unlawful removal and an unlawful refusal to reinstate, so Mr. Lazzari is entitled to back pay retroactive to the time the County directed the Town to reinstate him on December 18, 2007”

* Civil Service Law §71 provides that an employee terminated for a job-related incident can apply for reinstatement within one year of the abatement of his or her disability. The employee is to apply to the civil service department or municipal commission having jurisdiction "for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission." §71 further provides that “[t]he employee ‘shall be reinstated’ if such medical officer shall certify that such person 'is physically and mentally fit to perform the duties"' of the job,"

** §71, in pertinent part, provides that “If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years” In the event that the individual is reinstated to a position in a grade lower than that of his or her former position, his or her name is to be placed on the preferred eligible list for his or her former position or any similar position.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08052.htm

From the Office of the State Comptroller

From the Office of the State Comptroller

Published during the week of November 26 - December 2, 2012

DiNapoli: New Yorkers Facing $43 Billion in Added Taxes if Congress Fails to Act on Fiscal Cliff

If Congress fails to act to avert sweeping federal tax hikes and sharp spending cuts by January 1, New Yorkers could face more than $43 billion in tax increases and lose $609 million in federal aid in 2013, New York State Comptroller Thomas P. DiNapoli said Thursday in a speech to the Business and Labor Coalition of New York in New York City. Read DiNapoli’s report.

DiNapoli: Ulster County Waste Management Agency Likely Overpaid for Services

The Ulster County Resource Recovery Agency likely overpaid for landfill use, waste hauling and fuel because of questionable bidding practices, according to an auditreleased Friday by State Comptroller Thomas P. DiNapoli.

DiNapoli: Excelsior Charter School Lease Costing An Extra $800,000 Annually

Board members of the Brooklyn Excelsior Charter School approved the lease of Excelsior’s school building from a related business at a rate almost $800,000 per year above market value, according to a reportissued Friday by State Comptroller Thomas P. DiNapoli. DiNapoli’s auditors also cited that the company that manages the school, National Heritage Academies, refused to divulge financial records supporting expenses it charged to Excelsior.

DiNapoli: DOCCS Could Save Millions on Health Care

New York State could save as much as $20 million a year if the Department of Corrections and Community Supervision applies to the federal Medicaid program for inpatient care for eligible inmates, according to an auditreleased Wednesday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

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

the Town of Binghamton;

the Town of Decatur;

the Town of Fallsburg;

the Hamilton College Sewer District; and,

the Village of Marathon.

Amounts paid to an individual “as compensation” required by contract to be returned to the employer ignored in determining a final average salary upon retirement

Amounts paid to an individual “as compensation” required by contract to be returned to the employer ignored in determining a final average salary upon retirement
Licopoli v New York State Teachers' Retirement System, 2012 NY Slip Op 08400, Appellate Division, Third Department

This CPLR Article 78 action challenged the calculation of a retiree’s [R] retirement benefit by the New York State Teachers’ Retirement System [TRS].

R served as superintendent of the School District from 2001 until his retirement in 2009.

In 2006 R and the district entered into an employment contract covering the period of July 1, 2006 through June 30, 2009 that provided for basic annual salary increases of four percent. The agreement, however, required R to make a gift of one percent of his annual salary to the school district each year.

Additionally, the agreement provided that in the event R was to "resign" from his position for any reason other than for "retirement,” he was required to make a gift of $15,000 to the school district.*

When R retired in 2009 TRS determined that the sums he was contractually obligated to refund to the school district annually were to be excluded in determining his final average salary for the purposes of retirement.  

R filed a petition pursuant to CPLR Article 78 challenging TRS’s decision. Supreme Court dismissed R's petition and R appealed.

The Appellate Division said that TRS must determine R’s retirement benefits by first determining his final average salary, noting that a TRS member's final average salary is based on the individual’s “actual compensation earned during either the last three or five years of his or her employment, whichever is higher.” 

Further, said the court, in order to prevent any “artificial inflation of this figure,” any form of extra payment made in anticipation of retirement must be excluded, citing Palandra v New York State Teachers’ Retirement System, 84 AD3d 1689.

R argued that those monies that were paid to him that were to be ”gifted back to the school district” in accordance with the contract between the parties constituted regular compensation “because they did not reflect unusual or extraordinary increases in his annual salary and he would have made the gifts whether or not required to pursuant to the agreement.”

The court disagreed, commenting that although a four percent annual salary increase would not, in and of itself, appear extraordinary, there is no dispute that R was required to return a portion of that amount to the school district to satisfy his contractual obligation to the district.

Accordingly, the Appellate Division concluded that, in effect, R did not actually receive the monies he was contractually obligated to return to the district as employment compensation.

Thus, opined the court, TRS’s determination that the portions of R annual salary that were required to be gifted back to the district must be excluded from the calculation of his retirement benefit was not irrational and dismissed R’s appeal.

* The agreement was subsequently amended at R's request to permit him to make the $15,000 gift to the school district's parent-teacher associations in the event this provision in the agreement was triggered by P's resigning for other than reasons of retirement.  

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08400.htm

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

===================

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

=======================