Delay in terminating an employee

Delay in terminating an employee
2014 NY Slip Op 00265, Appellate Division, Third Department

In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that retaining Mendez, a probationary employee, on the payroll after the maximum period of his probation until the end of payroll period for administrative convenience did not result in his attaining tenure in the position.

The Court decided that, under the circumstances, keeping Mendez on the payroll was permissible in view of the fact that it was of a short duration; was for "administrative convenience;" and Mendez had been provided with timely prior notice of that he would be terminated at the end of his probationary period.

In Cappello the Appellate Division applied a similar rationale in overturning a decision by the Unemployment Insurance Appeals Board granting an individual [Claimant] unemployment insurance benefits.

According to the decision, the employer dismissed Claimant after determining that she had violated the employer's policy and committed theft. Claimant was initially disqualified from receiving unemployment insurance benefits on the ground that she lost her employment through misconduct, and this decision was upheld by an Administrative Law Judge following a hearing.

The Unemployment Insurance Appeal Board, however, reversed this decision and found that claimant was entitled to receive benefits. The Board ruled that Claimant did not lose her employment due to misconduct because the employer delayed in terminating her after learning of her actions and did not provide a reasonable excuse for the delay.

The employer appealed and the Appellate Division vacated the Board’s ruling.

The Court explained that the Board’s conclusion was not supported by the record as upon the employer becoming aware of Claimant's inappropriate conduct it immediately proceeded to conduct an investigation, obtaining a statement from one employee and subsequently obtained a statement from Claimant about a month later  “as part of its continuing investigation.” Less than two weeks after obtaining Claimant’s statement the employer terminated for violating the employer’s policy.

The Appellate Division said that “[u]nder the circumstances presented” it did not find that the employer had engaged in an inordinate delay in terminating Claimant such that it could not rely upon her misconduct as the reason for her discharge.

Noting that it is well settled that an employee's dishonesty or failure to comply with an employer's policy and procedures constitutes disqualifying misconduct, here, said the Appellate Division, the evidence is undisputed that Claimant violated the employer's relevant policy. Accordingly, explained the court, “[g]iven [Claimant’s] misconduct, substantial evidence does not support the Board's decision that she was entitled to receive benefits” and reversed the Board’s decision.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2014/2014_00265.htm

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The doctrine of Absolute Privileged attaches to an allegedly defamatory memorandum published in the context of ongoing litigation

The doctrine of Absolute Privileged attaches to an allegedly defamatory memorandum published in the context of ongoing litigation

2013 NY Slip Op 52290(U), Court of Claims [Not selected for publication in the Official Reports]

An individual [Petitioner] who worked at a state correctional facility filed a claim “sounding in defamation per se” alleging that an article appeared in the print and the on-line versions of a newspaper included statements attributed to a State official that disparaged Petitioner.

Eventually it was determined that alleged defamatory statements were made by a state employee and had been “acquired by a non-State actor,” which person gave it to one of the newspaper’s reporters.

According to the decision, an Assistant Attorney General involved in the instant matter provided a copy of the employee’s memorandum to an attorney, apparently the alleged “non-State actor,” involved in a related matter then pending in federal court.

The Court of Claims “assumed without deciding” that Petitioner’s proposed amended claim satisfied the threshold jurisdictional requirements of being timely filing and served within the relevant statute of limitations and that it satisfies the substantive pleading requirements of Court of Claims Act §11(b).

The court then denied Petitioner’s motion to amend his claim explaining that the alleged tortious conduct — the Assistant Attorney General’s “publication (or republication) of the [State employee’s] memorandum to [the attorney in the federal action] is not actionable because it was absolutely privileged,”* as “Statements made in the course of judicial proceedings are absolutely privileged … and absolute privilege will attach if the allegedly defamatory statements were ‘pertinent’ to the questions involved in the judicial proceeding.”

Further, explained the court, "Whether a statement is at all pertinent . . . is determined by an extremely liberal test" and  "To be actionable, a statement . . . must be so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame."

As the Court of Appeals held in Youmans v Smith, 153 NY 214, “The purpose of the absolute privilege afforded to communications made in the course of judicial proceedings is well established and clearly stated: the due process of ‘clients should not be imperiled by subjecting their legal advisers to the constant fear of suits for libel or slander.’"

Accordingly, said the court, the Assistant Attorney General’s actions in turning over the allegedly defamatory memorandum in the context of ongoing litigation are entitled to the absolute privileged, provided that the alleged defamatory statements were pertinent to the litigation, which, in this instance, the court found were so pertinent.

* The Court of Claims noted that "Absolute privilege has been recognized in a very few situations where there is an obvious policy in favor of permitting complete freedom of expression, without any inquiry as to the defendant's motives.” However, in Amato v. Welsh, 2013 ONCA 258, a decision handed down by Canada’s Court of Appeals for Ontario, suggests an exception to the doctrine. The Amato decision suggests that it may be possible for a court to find that the doctrine of absolute immunity yields to the attorney’s duty of loyalty to a client [see paragraphs 61 et seq. set out in the decision].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_52290.htm

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Governor Andrew M. Cuomo announces new appointments within his administration

Governor Andrew M. Cuomo announces new appointments within his administration.
Source: Office of the Governor

Governor Cuomo on Tuesday, February 25, 2014, announced the appointments of Margaret Egan and Linda Cohen to his administration.

Margaret Egan will serve as Assistant Secretary for Public Safety. Ms. Egan served as the Director of Policy & Government Affairs to Cook County Sheriff Tom Dart from 2012 to 2014. In that role Ms. Egan was responsible for developing and managing crime policy, social services and the legislative strategy for the nation’s largest single site jail and one of the largest police departments in Illinois. She developed and led the implementation of the Affordable Care Act for the Sheriff making the Cook County Jail the first jail in the nation to enroll detainees under Medicaid expansion, which has now become a model for jails across the country. Additionally she led efforts to improve correctional based education programming for school aged and adult detainees. She also developed projects around firearms tracing and trafficking throughout suburban Cook County.

Linda J. Cohen, Esq., will serve as Executive Director for the State Commission on National and Community Service. Prior to joining the Commission, Ms. Cohen served for a dozen years as Executive Director of the New York State Corps Collaboration, where she was responsible for one of the nation’s largest AmeriCorps programs. She also served as Executive Director of the New York State Dispute Resolution Association, as a contributing writer for Inside Sports Magazine and in various positions within all three branches of New York state government. She is a graduate of Union College, Albany Law School and the National Law Center at George Washington University.
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Defense for tenured administrators and faculty rated "ineffective" based on “Common Core”student performance proposed

Defense for tenured administrators and faculty rated "ineffective"  based on “Common Core”student performance proposed

Proposed Action: Amend 8 NYCRR 82-1.10(j) with respect to hearings on charges of tenured school employees [I.D. No.EDU-08-14-00020-P]

The following summarizes a proposed amendment to 8 NYCRR 82-1, Hearings of Charges Against Employees on Tenure

Purpose: To allow, under certain circumstances, tenured teachers and principals to raise as a defense in a section 3020-a hearing that their school district failed to timely implement the Common Core in the 2012-2013 and/or 2013-2014 school year.

Summary of the text of proposed rule: Subdivision (j) of section 82-1.10 of the Regulations of the Commissioner of Education is added, effective May 14, 2014, as follows:

(j) Where an expedited hearing brought based solely upon a charge of a pattern of ineffective teaching or performance of a classroom teacher or principal, or a hearing brought on a charge of incompetency, is based on an ineffective rating on the state growth and/or locally selected measures subcomponents of the teacher’s or principal’s annual professional performance review resulting from student performance on the Common Core state assessments administered in the 2012-2013 and/or 2013-2014 school years, the employee may raise as a defense an alleged failure by the employer to timely implement the Common Core by providing adequate professional development, guidance on curriculum or other supports to the employee.

The notice of this proposed amendment in the State Register explains that "the proposed amendment would thus protect tenured teachers and principals from termination based on an ineffective Annual Professional Performance Review (APPR) rating resulting from student performance on the Common Core assessments where they can prove that the district did not provide the professional development, curriculum materials or other supports needed for Common Core implementation during the 2012-2013 and/or 2013-2014 school years.”

The text of proposed rule and any required statements and analyses may be obtained from: Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov

Data, views or arguments may be submitted to: Peg Rivers, State Education Department, Office of Higher Education, Room 979 EBA, 89 Washington Ave., Albany, NY 12234, (518) 486-3633, email: regcomments@mail.nysed.gov

Public comment will be received until 45 days after publication [February 26, 2014] of this notice.
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Workers’ Compensation Law benefit claims based on "work-related" mental stress

Workers’ Compensation Law benefit claims based on "work-related" mental stress 
2014 NY Slip Op 00916, Appellate Division, Third Department

A police officer [Claimant] was on duty when he was called to the scene of an incident in which an armed suspect was firing shots at passing motorists and law enforcement officers.

Claimant and two fellow officers were assigned to be part of a "contact team," which approached the shooter from behind. The suspect was shot several times and died from those wounds. Claimant began to miss work and then filed an application for workers' compensation benefits. His claim was controverted by the police department.

Claimant was diagnosed with posttraumatic stress disorder related to the incident, which rendered him disabled. A Workers' Compensation Law Judge, however, denied his claim, finding that the events giving rise to Claimant's injury were part of his job description and responsibilities as a peace officer. The Law Judge ruled that Claimant had not sustained an accidental injury in the course of his employment.

The Workers' Compensation Board ultimately affirmed the Law Judge’s decision and Claimant appealed.

The Appellate Division upheld the Appeal Board’s decision, explaining that for a mental injury premised on work-related stress to be compensable, "the stress must be greater than that which usually occurs in the normal work environment."*

Whether the stress experienced by a claimant is more than that normally encountered is a factual question for the Board to resolve, and its finding will not be disturbed when supported by substantial evidence.

In this instance, said the court, although Claimant's supervisor described the particular circumstances of the encounter as "extraordinary," the regular course of duty for a police officer — no matter the size of the department — requires that he or she be on notice each day that deadly force may be required to subdue a suspect who is endangering public safety.

Accordingly, the Appellate Division said that it declined to disturb the Board's decision.

Other claims seeking Workers' Compensation Law benefits in which the individual claim he or she was entitled to benefits due to stress suffered on the job include:

1. Mattoon v Workers' Compensation Board, 284 A.D.2d 667 – employee not eligible for Workers’ Compensation benefits after leaving her job “due to work-related stress that resulted in depression, posttraumatic stress disorder and generalized anxiety disorder.” resulting from employee’s reassignment to anther position.

2. Witkowich v SUNY Alfred State Coll. of Ceramics, 80 AD3 1099 - Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law

3. Veeder v New York State Police Dept. - 86 AD3d 762 - Workers' Compensation Law benefits not available for “mental injury” resulting from an employer’s lawful personnel actions

*Section 2(7) of the Workers’ Compensation Law specifically excludes from compensation "an injury which is solely mental and is based on work related stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00916.htm
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A showing that a pending arbitration’s award may be rendered ineffectual and there is a likelihood of success is critical to obtaining a preliminary injunction

A showing that a pending arbitration’s award may be rendered ineffectual and there is a likelihood of success is critical to obtaining a preliminary injunction
Patrolmen's Benevolent Assn. of the City of New York, Inc. v City of New York,2013 NY Slip Op 08033, Appellate Division, First Department

Three members [Petitioners] of the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) were elected to four-year terms as the sole borough-wide PBA representatives for police officers assigned to the Bronx. At the request of the PBA, the Office of Labor Relations (OLR) issued Petitioners Release Time Certificates pursuant to Mayor's Executive Order #75 (3/22/73) (EO 75), which provided for full-time leave with pay and benefits.*

The three Petitioners, however, were subsequently suspended without pay for thirty days pursuant to Civil Service Law §75(3-a) following their indictment by a grand jury in connection with an alleged ticket-fixing scheme. Petitioners were subsequently restored to modified duty. OLR, however, rescinded their Release Time Certificates and offered to issue new Release Time Certificates to three other employees to be chosen by PBA.

PBA rejected the offer and filed a contract grievance. The grievance was denied and PBA filed a demanded for arbitration, contending that the rescission of the Certificates violated the parties' collective bargaining agreement and EO 75.  PBA also filed a petition for a preliminary injunction pursuant to CPLR 7502(c) seeking to have the Petitioner’s Certificates reinstated pending the arbitrator issuing his or her decision and award..

Supreme Court granted the petition, “enjoining respondents from implementing any termination or revocation of ‘Release Time’ leave for the three individual petitioners pending resolution of arbitration proceedings commenced by petitioner Patrolmen's Benevolent Association.”

The Appellate Division vacated the preliminary injunction on appeal in a three to two ruling.**

Noting that CPLR 7502(c) provides that the Supreme Court "may entertain an application for ... a preliminary injunction in connection with an arbitration that is pending ... the majority explained such an application may be granted “only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief." Further, said the court, PBA, as the party seeking the preliminary injunction, was required to “demonstrate a probability of success on the merits, danger of irreparable injury in the absence of a preliminary injunction, and a balance of the equities in their favor.”

Applying these standards, and "even assuming that [Petitioner] established that an award in their favor would be rendered ineffectual without provisional relief" as required by CPLR 7502(c), the majority held that PBA “failed to make the requisite showing of a likelihood of success on the merits, and therefore have not established their entitlement to injunctive relief.”

The majority noted that each Release Time certificate stated that it “MAY BE REVOKED, MODIFIED OR CANCELLED” and Petitioners did not suggest any purpose for such language “other than to vest the City with residual authority to rescind a Release Time [Certificate] where warranted.”

Holding that Petitioners' interpretation of EO 75 was not plausible, the majority concluded that Petitioners “have not demonstrated a likelihood of success on the merits,” the Appellate Division granted the appeal.

* With respect to the State as the employer, employee organization leave has been an issue since the adoption of the Taylor Law. In response to demands that State employees elected to a leadership position of an employee organization representing state employees be provided with "paid organization leave," the State agreed to provide for “Employee Organization Leave” and enacted §46 of Chapter 283 of the Laws of 1972 to this end. This law provides that a State employee organization may obtain approval for paid full or part-time leaves of absence of its representatives provided it agrees to fully reimburse the State for the salary and other compensation paid to the individual and, in addition, for all employer contributions for fringe benefits made on behalf of the individual while he or she is on Employee Organization Leave. The individual would continue as a State employee, on the State’s payroll, during this time. Another consideration affecting State employees on Employee Organization Leave: The State Ethics Commission has advised [Advisory Opinion No. 90-1] that “State employees on Employee Organization Leave or State employees on leave without pay who serve as employee organization representatives for CSEA … who have terminated their State service and are now employed by CSEA are subject to the "revolving door" provisions of the Public Officers Law and the corresponding restrictions on post-employment activities.” Presumably this opinion would be applied with respect to State employees on employee organization leave serving with other employee organizations.”

** Judges Tom and Gische dissented in an opinion by Judge Gische.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08033.htm

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