ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

October 15, 2014

Withdrawal of a resignation


Withdrawal of a resignation
2014 NY Slip Op 06883, Appellate Division, First Department

From time to time a former New York City Department of Education educator who was tenured in the position is reemployed in his or her former position. Does such a reemployment automatically result in the employee attaining tenure? 

The Appellate Division ruled that if a former tenured employee fails to comply with the regulations of the Chancellor of the New York City Department of Education governing the “withdrawal of a resignation and restoration to tenure,” the former employee’s tenure is not ipso facto*restored.

Rejecting a former New York City Principal’s contention that his tenure was constructively restored to him upon his reemployment by the New York Department of Education, the Appellate Division affirmed Supreme Court dismissal of his petition seeking a court order directing the Chancellor to reinstate him to his former position with tenure.

In a footnote to the decision, the Appellate Division said that “neither side has explained why petitioner could not still be restored to tenure if he now followed the procedures set out in the Chancellor's regulations.”

The relevant regulations appear to be Regulation C-205, subdivisions (28) and (29).

C-205(28) [Withdrawal of Resignation Generally] provides, in pertinent part, that “upon written request, a pedagogical employee who has resigned may, at the discretion of the Executive Director of the Division of Human Resources, be permitted to withdraw such resignation….”

C-205(29) [Withdrawal of Resignation within Five Years] addresses the reinstatement of former non-supervisory tenured staff and provides, in pertinent part, that in the event "a non-supervisory educator is reinstated more than five years after the effective date of his or her resignation," he or she will be required to serve a two-year probationary period.

With respect to employees subject to the Rules for the Classified Service promulgated by the New York State Civil Service Commission, 4 NYCRR 5.3(c) provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

That said, 4 NYCRR 5.4, Reinstatement following resignation, provides, in pertinent part that a permanent employee who has resigned from his or her position may be reinstated without examination within one year of the effective date of the resignation in the position from which he or she resigned, if then vacant.

4 NYCRR 5.4 further provides that “In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his [or her] former position more than one year after resignation.”

Many local Civil Service Commissions have adopted similar rules.

* In other words, the individual does not attain tenure as a direct consequence of his or her reemployment.

The decision is posted on the Internet at: 
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October 14, 2014

Appealing administrative decisions


Appealing administrative decisions
Modlin v Kelly, 2014 NY Slip Op 06866, Appellate Division, First Department

Typically a disappointed individual challenges an administrative decision by bringing an Article 78 action.  

In reviewing an administrative determination that was made without a hearing the issue is whether the action taken had a "rational basis" and was not "arbitrary and capricious" An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts." If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable. Ward v City of Long Beach, [20 NY3d 1042. .

In contrast, if the matter was determined after an administrative hearing, should the petition before Supreme Court raise a question of whether an administrative determination was supported by substantial evidence the proceeding is to be transferred from the Supreme Court to the Appellate Division to address that issue [See §7804[g] of the Civil Practice Law and Rules.]

Where the challenged determination was judicial or quasi-judicial in nature and made on the basis of a hearing at which evidence was taken pursuant to direction by law an aggrieved party is entitled to have a court test the legal sufficiency of the evidence relied upon by the agency by simply requesting that it do so.

Further, there is essentially nothing to be “proved” in the course of the appeal as all evidence has already been adduced at the administrative hearing and findings made based on such evidence. Accordingly, the challenging party’s task is not to prove transactions or occurrences, but rather to present legal argument on the substantial evidence issue.

What constitutes substantial evidence? In Robert Martin v Board of Trustees, 34 AD3d 580, the Appellate Division commented that "Substantial evidence has been defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." Further, said the court, “it is the function of the administrative agency or the Hearing Officer, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject," citing Sahni v New York City Bd. of Educ., 240 AD2d 751.

In Modlin the court pointed out that Supreme Court "improperly transferred” the matter to the Appellate Division because the determination challenged “was not made pursuant to an administrative hearing.” The court then addressed the merits of the appeal “in the interest of judicial economy,” citing DeMonico v Kelly, 49 AD3d 265.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_06866.htm
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October 10, 2014

Ignorance of the appeal process does not provide a sufficient basis to excuse a delay in commencing a timely appeal


Ignorance of the appeal process does not provide a sufficient basis to excuse a delay in commencing a timely appeal
Decisions of the Commissioner of Education, Decision No.16,671

A certified public school administrator [Probationer] was appointed by the School District as a probationary Special Education School Improvement Specialist.  Probationer’s three-year probationary appointment was to expire on November 22, 2013. By letter dated November 19, 2013, Probationer was notified that the School Superintendent was recommending the board discontinue her probationary appointment as of January 19, 2014. At the same time Probationer was offered a one-year extension of her probationary term, which she subsequently declined.

Ultimately Probationer was advised by letter dated December 17, 2013, that her employment was terminated effective January 19, 2014. 

In her appeal to the Commissioner challenging her termination Probationer alleged that she had fulfilled her job responsibilities, had positive evaluations and no disciplinary actions had been taken against her.* She also claimed that she had been recommended for tenure by two supervisors. In view if this, Probationer asked that the Commissioner issue an order directing her reinstatement to her former position with tenure and “back pay or monetary rewards.”

Contending that Probationer had not been denied any statutory or constitutional rights and that she fails to demonstrate a clear right to the relief requested, the School District argued that Probationer’s appeal was untimely and must be dismissed.

Addressing the procedural issue of timeliness, the Commissioner noted that an appeal to the Commissioner must be commenced “within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.”

Here the record did not indicate when Probationer actually received the letter advising her that her employment was to be terminated. In such case, explained the Commissioner, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays. In Probationer case, said the Commissioner, even allowing the usual five days for mailing, her appeal was not commenced within 30 days of the December 17, 2013 letter notifying her of her termination.

Probationer had attempted to explain her delay in commencing the appeal in a letter to the State Education Department’s Office of Counsel indicating that she had written to the State Education Department in May 2014 and received a response in June 2014 advising her that she could appeal the school district’s decision to the Commissioner without an attorney.  Petitioner said that she was previously unaware that she could appeal “without an attorney.” 

However, said the Commissioner, “Even if I accept [Probationer’s] letter … she offers no satisfactory explanation of why a delay of more than six months in commencing the appeal should be excused.”  Further, observed the Commissioner, “It is well-settled that, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal.”

The Commissioner said that he found “no unusual circumstances in this case” and dismissed Probationer’s appeal on the ground that it was untimely.

* The Commissioner's decision states that Probationer “does not allege that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription,” citing Appeal of Rubinstein, 45 Ed Dept Rep 299, Decision No. 15,329. As the Court of Appeals said in Duncan v Kelly, 9 N.Y.3d 102, a probationary employee may be discharged for "almost any reason, or for no reason at all" as long as the decision is not made "in bad faith or for an improper or impermissible reason."

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume54/d16671
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October 09, 2014

Student records sought in the course of a disciplinary action must be relevant to the defense of the accused and a factual basis establishing their relevance must be demonstrated


Student records sought in the course of a disciplinary action must be relevant to the defense of the accused and a factual basis establishing their relevance must be demonstrated
Watertown City Sch. Dist. v Anonymous, A Tenured Teacher, 2014 NY Slip Op 06444, Appellate Division, Fourth Department

The Watertown City School District [WCSD] initiated a proceeding in Supreme Court seeking an order quashing a subpoena duces tecum served on it by Anonymous, a tenured teacher, in the course of an administrative disciplinary action initiated against Anonymous pursuant to Education Law §3020-a. Anonymous cross-moved to compel WCSD to comply with the subpoena duces tecum.

Supreme Court granted the cross-motion filed by Anonymous and WCSD appealed.

The §3020-a Hearing Officer had issued a subpoena duces tecum in response to Anonymous’ request for production of the records of students testifying in the disciplinary action notwithstanding relevant provision of the Family Educational Rights and Privacy Act of 1974 (FERPA).

Although §3020-a hearing officers have the authority to order the production of student records that are material and relevant to accused employee's defense,* the Appellate Division noted that it is well established that, "[g]enerally, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence" the petition and granting the cross motion.”

Citing Matter of N. v Novello, 13 AD3d 631, the Appellate Division explained that where, as here, "the relevance of the subpoena is challenged, it is incumbent upon the issuer to come forward with a factual basis establishing the relevance of the documents sought to the investigation" to show "that the material sought bears a reasonable relation to the matter under investigation.”

In this instance the Appellate Division found that the allegations of misconduct filed against Anonymous involved activities outside of the classroom and Anonymous stated only generally that the students' records were "highly relevant" in asserting a defense and that the records are "necessary and relevant to the preparation of a defense to the charges on its face."

The court found that Anonymous failed to indicate how the records were reasonably related to Anonymous’ defense nor did Anonymous present a factual basis establishing their relevance. Accordingly, the Appellate Division concluded that Supreme Court had “abused its discretion in refusing to quash the subpoena duces tecum” served on WCSD.

It unanimously reversed, on the law, Supreme Court’s ruling and granted WCSD’s petition to quash.the subpoena duces tecum issued by the Hearing Officer.

* See Education Law §3020-a [3] [c] [iii] [A], [C].

The decision is posted on the Internet

October 08, 2014

A full time employee’s refusal to accept a part time position does not affect the individual’s right to have his or her name placed on an appropriate preferred list



A full time employee’s refusal to accept a part time position does not affect the  individual’s right to have his or her name placed on an appropriate preferred list
Gervais v Board of Educ. of E. Aurora Union Free Sch. Dist., 2014 NY Slip Op 06414, Appellate Division, Fourth Department

In this CPLR Article 78 proceeding Supreme Court determined that the denial of certain teachers' rights to have their names placed on the preferred eligibility list was arbitrary and capricious. The court directed that the school district reinstate their names on the appropriate preferred eligibility list. The Appellate Division unanimously affirmed the lower court’s ruling.

The school district had contended that the teachers were not entitled to be placed on the preferred eligibility list because they had refused to accept the part-time teaching positions offered to them.*

The Appellate Division pointed out that Education Law §2510 (3) (a) provides that, if a teaching position "is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled."

Further, said the court, an individual "on such preferred list shall be reinstated or appointed to such vacancies . . . in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position."

The court explained that by reducing the teachers’ full-time teaching positions to part-time positions of .4 full time equivalent [FTE] and .2 FTE respectively, the district had "effectively abolished the full-time position[s] and created [] new part-time position[s]," thereby triggering teachers' rights under Education Law §2510 to be placed on the preferred eligibility list for possible reemployment in a full-time position.**

The fact that the teachers rejected the offer of appointment to a.4 FTE and .2 FTE position, respectively, which resulted in their termination from the school district, did not render them ineligible for placement on the preferred eligibility list nor to appointment from such a list should they become eligible for appointment to a suitable vacancy.

* On appeal the school district’s argued that the teachers “were not entitled to placement on the preferred eligibility list because they did not have tenure.” The Appellate Division said that any argument based on an alleged lack of tenure was not properly before it inasmuch as that argument was raised for the first time on appeal.

** See, also, Appeal of Morehouse, Decisions of the Commissioner of Education, Decision #13,896

For additional information concerning the layoff of personnel in the public service click on http://booklocker.com/books/5216.html.

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October 07, 2014

The “going and coming to work” rule may affect an injured employee’s eligibility for disability benefits


The “going and coming to work” rule may affect an injured employee’s eligibility for disability benefits
Dreher v DiNapoli, 2014 NY Slip Op 06631, Appellate Division, Third Department

Among Court Officer John P. Dreher’s duties was transporting a judge who needed assistance to the courthouse from his residence. While traveling to the judge's residence Dreher took a brief detour in order to purchase a cup of coffee and was struck by a car while crossing the street, sustaining various injuries.

Dreher obtained line of duty injury benefits as provided under the controlling collective bargaining agreement. He then filed an application with the New York State Employees' Retirement System seeking accidental disability retirement benefits. His application was denied and Dreher appealed the System's decision..

The Appellate Division affirmed the Retirement System’s determination. The court explained that the State Comptroller "is vested with exclusive authority to determine all applications for retirement benefits, including the question of whether an accidental injury was sustained while in service, and if supported by substantial evidence, the determination must be upheld.”

The court noted that while Dreher testified that he was on duty when he was injured, he "'was engaged in a personal activity rather than performing work duties at the time when the incident occurred."

Finding that substantial evidence supported the Comptroller's determination that Dreher was not in service when he was injured, and notwithstanding the fact that he received line of duty injury benefits under the terms of the collective bargaining agreement, the court dismissed Dreher’s appeal.

Determining whether an individual was “in service” for the purposes of establishing eligibility for Workers’ Compensation benefits was an issue in Neacosia v NY Power Authority, 85 NY2d 471.

Here the Court of Appeals affirmed the Workers’ Compensation Board’s decision  that Michael Neacosia, who was injured after he stopped on his way home to leave his work uniform at a cleaning shop, was acting within the scope of his employment and thus was eligible for workers' compensation benefits.

Neacosia was a security officer employed by the New York State Power Authority. The Authority provided its security officers with uniforms and required that they keep the uniforms clean and presentable. To this end the Authority had made arrangements with a number of cleaning establishments to clean their security officers’ uniforms and bill the agency for their services. In the alternative, security personnel could arrange for the cleaning themselves and then submit bills to the Authority for the cost of the cleaning.

Neacosia, after completing his tour of duty, left work and then stopped to deliver his uniforms for cleaning at one of the cleaners recommended by the Authority, which would then bill the Authority for its services.

Leaving the cleaning establishment, Neacosia headed home along his usual route and was involved in an automobile accident in which he sustained severe injuries. The Authority controverted Neacosia’s claim for Workers’ Compensation benefits, contending that he had been involved in an accident while driving his personal automobile on a public highway after leaving work and was not engaged in any work related activity at the time he was injured.

A Workers’ Compensation Administrative Law Judge decided that under the facts giving rise to Neacosia’s claim, which were stipulated, Neacosia's travel had a dual purpose that served to extend the scope of his employment. The Workers’ Compensation Board affirmed the ALJ’s determination.

Although the general rule is that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law, there are certain exceptions to this "going and coming" rule. One such exception arises when the employee is engaged in a "special errand" for the employer.

The Court of Appeals sustained the Workers’ Compensation Board's ruling that Neacosia was engaged in a "special errand" at the time he was injured and thus eligible for Workers' Compensation benefits.

For more information concerning disability retirement, workers’ compensation, disability leaves and related matters, click on http://booklocker.com/books/3916.html .

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October 06, 2014

Annulling a finding that the employee was guilty of one or more or several disciplinary charges served on the employee requires remanding the matter for a reconsideration of the penalty imposed.


Annulling a finding that the employee was guilty of one or more or several disciplinary charges served on the employee requires remanding the matter for a reconsideration of the penalty imposed.
Sullivan v County of Rockland, 2014 NY Slip Op 06593, Appellate Division, Second Department

This decision demonstrates that in the event an employee has been served with, and found guilty of, multiple disciplinary charges and the penalty is imposed based on such a finding of guilt, should one or more the charges of alleged misconduct be subsequently annulled by a court the matter is to be remanded to the appointing authority for its determination as to the appropriate penalty to be imposed based on the surviving charges of misconduct..

A hearing officer found the employee [Individual] guilty of two specifications of charges of misconduct and recommended that Individual be terminated from his position. The appointing authority adopted the findings made by hearing officer and, in consideration of such findings, imposed the penalty of dismissal of Individual from his position.

Individual appealed and Supreme Court sustained the findings of "guilty of the two specifications" adopted by the appointing authority but “found that the penalty of termination was excessive” and remitted the matter to the appointing authority for the imposition of an appropriate punishment.*.The appointing authority appealed the Supreme Court’s order.

The Appellate Division sustained the Supreme Court order only to the extent that it found the hearing officer's finding Individual guilty of Specification 1.

The court said that it found that there was substantial evidence in the record to support the findings and conclusions of the hearing officer with respect to finding Individual guilty of Specification 1. However, said the court, the appointing authority’s determination with respect finding Individual guilty of Specification two was not supported by substantial evidence and thus the appointing authority’s determination that Individual was guilty of the misconduct alleged in Specification two must be annulled and that Specification dismissed.

Addressing the procedures followed in this action the Appellate Division explained that "The review of an administrative decision made after an employee disciplinary hearing is limited to a consideration of whether the determination was supported by substantial evidence."  In the event the petition before Supreme Court raises a question of whether an administrative determination is supported by substantial evidence the proceeding should be transferred from the Supreme Court to the Appellate Division to address that issue.**

Substantial evidence "is related to the charge or controversy and involves a weighing of the quality and quantity of the proof." and the term "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

In the event there is conflicting substantial evidence or different inferences may be drawn from such substantial evidence, the duty of weighing the evidence and making the choice is vested in the  administrative body concerned, in this instance the appointing authority as the controversy involves a challenge to a disciplinary action taken against an employee. Courts may not weigh the evidence or reject the choice made by administrative body where substantial evidence is conflicting and room for choice exists.

Here, however, the Appellate Division held that because it found that one of the two specifications of misconduct relied upon was annulled as not supported by substantial evidence, the penalty imposed by the appointing authority must be vacated and the matter remitted to the appointing authority to consider the appropriate penalty to be imposed upon Individual as the result of his having been found guilty of Specification one alone.

* Individual also appealed Supreme Court’s decision that found the hearing officer's findings and conclusions were supported by substantial evidence and were appropriately adopted by the appointing authority.

** See §7804[g] of the Civil Practice Law and Rules.

The decision is posted on the Internet at:

October 04, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending October 4, 2014


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending October 4, 2014
Click on text highlighted in color to access the full report

The Comptroller said that “In today’s fiscal climate, budget transparency and accountability for our local communities is a top priority by auditing municipal finances and operations ... my office continues to provide taxpayers the assurance that their money is being spent appropriately and effectively.”

Despite maintaining comprehensive, accurate and timely records, the treasurer did not file the district’s 2012 annual financial report with the Office of State Comptroller until April 2014. In addition, district officials used a request for proposal process to award the contract for auditing the district’s 2012 and 2013 financial statements. However, the audits have not been performed.

The board did adopt realistic and structurally balanced budgets based on historical trends. As a result, the village ended 2011-12 with an unplanned net operating deficit of $372,471. In addition, village officials need to improve their oversight of the budget. Improved monitoring will enhance their ability to react to external influences such as economic downturns and emergencies.

The board did not establish adequate controls to ensure the district’s financial activity was properly recorded and reported and that district money was adequately safeguarded. The board did not adequately segregate the secretary-treasurer’s duties, provide any additional oversight or implement other compensating controls when segregating duties was not practical.

While the treasurer does maintain up-to-date and accurate accounting records, the president and executive committee did not provide adequate oversight of the treasurer’s activities. Department officials were unaware of the need for additional controls over the cash disbursement process, such as an annual audit.

City officials did not ensure that internal controls over payroll processing provided for adequate segregation of duties. The payroll clerk performed all significant phases of the payroll process. She entered new employees, pay rates and employees’ time worked from their time records into the computerized payroll system, calculated withholding adjustments and finalized the payrolls.

The board does not provide adequate oversight of the department’s financial activities. The treasurer makes all deposits, disburses cash without the board’s prior approval, performs all record keeping functions and prepares bank reconciliations without independent oversight. Further, the board does not audit the individual claims for accuracy or examine them for supporting documentation.

Village officials do not adequately monitor water operations. Although village officials were aware of the aging infrastructure and potential for leaks, no one determined whether water was unaccounted-for. For example, the village has unaccounted-for water totaling 36.7 million gallons annually, or approximately 60 percent of the water produced. Village officials do not have written policies or procedures requiring the reconciliation of the water produced by the water system with the water billed to customers.

Counties can improve their controls to better ensure that hospitals and providers are charging appropriate rates. In seven (Chautauqua, Clinton, Erie, Jefferson, Orleans, Oswego and Rensselaer) of the eight counties audited, county officials did not pay the appropriate Medicaid diagnostic related group rates on 75 percent of the inpatient hospital claims.
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October 03, 2014

Posted by Justia: Weekly Opinion Summaries – Labor and Employment Law


Posted by Justia: Weekly Opinion Summaries – Labor and Employment Law
Weekly Summaries Distributed October 3, 2010

Court: U.S. 1st Circuit Court of Appeals
Docket: 13-1685

Judge: Selya

At issue in this case was a popular restaurant in Puerto Rico owned by Lorraine Enterprises, Inc. The corporation was owned by Defendant Lorraine Lago and her husband. The Secretary of Labor sued the restaurant, Lago, and the restaurant’s general manager, alleging that Defendants were liable for violating the Fair Labor Standards Act’s (FLSA) minimum wage, overtime, and recordkeeping requirements. Specifically, the Secretary alleged that the restaurant took advantage of the reduced federal minimum wage established by the FLSA for the restaurant industry without complying with the concomitant requirements. The district court granted summary judgment for the Secretary and, thereafter, denied Defendants’ motion to alter or amend the judgment. The First Circuit affirmed, holding that the district court (1) did not err in determining that no infringement of Defendants’ due process rights had occurred; (2) did not err in granting summary judgment on the minimum wage claim; and (3) did not abuse its discretion in refusing to vacate the judgment as to the individual defendants.




Court: U.S. 1st Circuit Court of Appeals
Docket: 13-2307

Judge: Lynch

The “B Prong” of the Massachusetts Independent Contractor Statute, Mass. Gen. Laws ch. 149, 148B(a)(2), requires that workers perform a service outside the usual course of the employer’s business to be classified as independent contractors. The Massachusetts Delivery Association (MDA) filed an action for a declaration that the B Prong is preempted by the Federal Aviation Administration Act (FAAAA), and for an injunction barring the Attorney General from enforcing section 148B(a)(2) against the MDA’s members. The FAAAA preempts state laws that “relate to” the prices, routes, or services of a motor carrier “with respect to the transportation of property.” The district court held that the FAAAA does not preempt section 148B(a)(2). The First Circuit reversed, holding that the district court incorrectly interpreted the preemption test under the FAAAA and incorrectly applied the test to section 148B(a)(2). Remanded.




Court: U.S. 2nd Circuit Court of Appeals
Docket: 13-2705

Judge: Livingston

The EEOC filed suit against the Port Authority under the Equal Pay Act of 1963 (EPA), 29 U.S.C. 206(d), alleging that the Port Authority paid its female nonsupervisory attorneys at a lesser rate than their male counterparts for "equal work." The district court granted the Port Authority's motion for judgment on the pleadings under Rule 12(c). The court affirmed, concluding that the complaint failed to state a plausible claim for relief where the EEOC failed to allege any facts concerning the attorneys' actual job duties and, therefore, the court had no basis from which to draw a reasonable inference that the attorneys performed "equal work."



Court: U.S. 8th Circuit Court of Appeals
Docket: 13-2592
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Judge: Loken

Plaintiff, a pathologist, filed suit against Avera, alleging that Avera violated federal and state laws for terminating a Services Agreement. Plaintiff filed suit under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq.; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq.; the Family Medical Leave Act (FMLA), 29 U.S.C. 2617 et seq.; and the South Dakota Human Relations Act (SDHRA), S.D. Codified Laws 20-13-1 et seq. The court affirmed the district court's grant of summary judgment dismissing all of plaintiff's claims because plaintiff was an independent contractor of St. Luke's Hospital under his Services Agreement and not an employee.


Court: U.S. 9th Circuit Court of Appeals
Docket: 12-17780

Judge: Fletcher

Peabody mines coal on the Hopi and Navajo reservations in Arizona under leases with the tribes. The EEOC filed suit alleging, among other things, that Title VII of the Civil Rights Act, 42 U.S.C. 2000e-8(c), prohibits the tribal hiring preference contained in the Peabody leases. The district court granted summary judgment against the EEOC on the merits. The court affirmed, concluding that the Navajo hiring preference in the leases at issue is a political classification, rather than a classification based on national origin, and therefore does not violate Title VII. Further, the EEOC waived on appeal its record-keeping claim and the district court acted within its discretion in denying the EEOC's motion to supplement the record.



Court: Alabama Supreme Court
Docket: 1111554

Judge: Murdock

The State Comptroller, Thomas L. White, Jr., appealed a preliminary injunction entered in response to an action for declaratory and injunctive relief brought by Karen John, the Alabama Education Association ("the AEA"), Randy Hebson, and the Alabama State Employees Association ("the ASEA"). This was the third time a case involving the question of deductions by the comptroller from a State employee's salary for payment of contributions and dues has come before the Supreme Court in recent months. The comptroller executed payroll deductions for dues from State employees who were members of the AEA and the ASEA. On June 29, 2012, the comptroller issued a "memorandum" to "Affected Organizations" regarding "Act 2010-761 Guidelines (State Comptroller Payroll Deductions, Revised June 2012)." The memorandum also contained a sample "Act 2010-761 Certification Form for Organizations:" if the organization wanted to receive salary deductions from State employees, the form required an individual from the organization to provide a notarized signature and to certify under penalty of being barred from receiving deductions that the organization would "not use any portion of the membership dues collected by payroll deduction from the pay of its members who are State employees for political activity as that term is defined in [the Act]" and that the organization would "provide to the State Comptroller a detailed breakdown of the expenditure of those membership dues not later than the deadline, and using the forms, prescribed by the Comptroller from time to time." The comptroller sent copies of the memorandum to the AEA, the ASEA, and other organizations that were receiving dues from State-employee members via salary deductions. The ASEA submitted its certification to the comptroller, along with a letter from its counsel, stating, in part, that the organization submitted the certification "under protest and without waiving any of its rights as they relate to any ongoing litigation concerning [the Act], or related to the rules and regulations promulgated in your 'Memorandum to Affected Organizations.'" The AEA declined to submit a certification form and thus was deemed ineligible to receive dues via payroll deductions. On August 17, 2012, the AEA, AEA member and State employee Karen John, the ASEA, and ASEA president Randy Hebson sued White in his official capacity as comptroller and the "Office of the State Comptroller" seeking a judgment declaring that the guidelines were void because they had been promulgated without following the procedures required in the Alabama Administrative Procedure Act. The Supreme Court reversed: plaintiffs' action was "due to be dismissed"insofar as it purported to name "the Office of the State Comptroller" as a defendant, and the circuit court was instructed to dismiss the action in that regard. Furthermore, the Court found the circuit court erred in issuing the injunction as plaintiffs did not meet their burden for injunctive relief. The case was remanded for further proceedings.



Court: Alabama Supreme Court
Docket: 1121301

Judge: Murdock

Madeline Nelson and 25 other individuals formerly employed as nontenured teachers or probationary classified employees in the Mobile County Public School System appealed the dismissal of their action against the members of the Board of School Commissioners of Mobile County -- Ken Megginson, Judy P. Stout, Reginald A. Crenshaw, Levon C. Manzie, and William Foster -- and against the superintendent of the school system, Martha Peek. In 2009, the plaintiffs filed an action against the Board of School Commissioners of Mobile County which was voluntarily dismissed without prejudice three years later in light of the Supreme Court's decision in "Board of School Commissioners of Mobile County v. Weaver," (99 So. 3d 1210 (Ala. 2012)). In 2012, the plaintiffs refiled their action , alleging that their employment was terminated "pursuant to a reduction-in-force implemented by Defendants in response to alleged financial constraints." The plaintiffs further alleged that the failure to rehire them by the conclusion of the following school year was a violation of a written policy of the school system. The circuit court granted defendants' motion to dismiss the complaint: "[t]his action was brought more than three (3) years from the date of accrual. All of the Plaintiffs' claims for mandamus, declaratory or injunctive relief would be barred by the two (2) year statute of limitations set out in 6-2-38(l). Finally, any of the Plaintiffs' claims for backpay or other monetary relief would be barred by the same two (2) [year] statute of limitations under 6-2-38(m)." On appeal to the Supreme Court, plaintiffs primarily contended that the circuit court erred in concluding that their claims were barred by the applicable statute of limitations because they stated a breach-of-contract claim, which had a six-year statute of limitations. Upon review, the Supreme Court concluded that the plaintiffs stated a claim of breach of contract and that therefore their claim was subject to a six-year, rather than a two-year, statute of limitations. Accordingly, the circuit court's dismissal was reversed, and the case remanded for further proceedings.



Court: Arkansas Supreme Court
Docket: CV-13-962

Judge: Hart

Anita Cooper, who was employed as principal of the Oark, Arkansas schools, was removed from her duties as principal. The Superintendent of the Jasper School District No. 1 of Newton County listed nine reasons as bases for the termination. The District’s Board of Directors then terminated Cooper’s employment. The circuit court reversed the Board’s decision, reinstated Cooper to her position, and awarded Cooper $64,998 in damages. The Superintendent and District appealed. The Supreme Court affirmed, holding (1) the circuit court did not err in finding that Defendants failed to comply with the Teacher Fair Dismissal Act; (2) the circuit court did not err in concluding that the contract in the case at bar created a property right in Cooper’s position as principal of the Oark schools; and (3) the circuit court’s award to Cooper was neither excessive nor amounted to an award of “double retirement.”



Court: Mississippi Supreme Court
Docket: 2013-CA-00369-SCT

Judge: Dickinson

Lacie Smith worked for Express Check Advance of Mississippi, LLC. A condition in her employment papers was that she agreed to submit “any employment-related dispute” to arbitration. Later, in response to her termination, Smith sued Express Check in circuit court. The trial judge compelled arbitration and Smith appealed. Finding no reversible error, the Supreme Court affirmed.



Court: New Hampshire Supreme Court
Docket: 2013-062

Judge: Dalianis

Petitioner Scott Anderson appealed a superior court order granting summary judgment to respondents, the Executive Director of the New Hampshire Retirement System (NHRS) and the State, and denying summary judgment to Anderson and three other petitioners. Anderson was a retired Plaistow police officer who was a member of the NHRS, and the only petitioner who appealed. After retiring, he worked part-time as a police officer in Plaistow, Atkinson, and Hampstead. When he retired, RSA 100-A:1, XXXIV provided that "[p]art-time," for the purposes of employing a NHRS retiree meant, "employment by an [NHRS] employer" of no more than "32 hours in a normal calendar week," or if the work hours in some weeks exceeded thirty-two hours, then no more than "1,300 hours in a calendar year." Anderson understood that provision "to mean [he] could work potentially up to 32 hours per week for Plaistow, up to 32 hours per week for Atkinson, and up to 32 hours per week for Hampstead." In 2012, the legislature amended RSA 100-A:1, XXXIV to provide that "[p]art-time," for the purposes of employing a NHRS retiree, "means employment during a calendar year by one or more employers of the retired member which shall not exceed 32 hours in each normal calendar week," or if the work hours in some weeks exceed thirty-two hours, then no more than 1,300 hours in a calendar year. In August 2012, Anderson and three other NHRS retirees petitioned for declaratory and injunctive relief. Anderson contended that to apply the 2012 amendment to him violated Part I, Article 23 of the New Hampshire Constitution. Specifically, he asserted that, as a result of the 2012 amendment, he would be "restored to service" under RSA 100-A:7 (2013) and, thus, lose his retirement benefits if he worked more than "[p]art-time" as defined in RSA 100-A:1, XXXIV. Under RSA 100-A:7, when a retiree is "restored to service," his "retirement allowance shall cease," and he "shall again become a member of the [NHRS] and . . . shall contribute" to that system. Anderson contended that the 2012 amendment substantially impaired his vested right because its effect is to restore him to service if he works more than thirty-two hours per week or 1,300 hours per year for any combination of NHRS employers, even if he did not work full-time hours for any single NHRS employer. Thereafter, the petitioners moved for summary judgment, and the State cross-moved for summary judgment. The trial court ruled in the State's favor, and Anderson's appeal followed. Finding no reversible error, the Supreme Court affirmed.


Court: New Hampshire Supreme Court
Docket: 2013-076

Judge: Dalianis

The New Hampshire Department of Administrative Services appealed a superior court order granting the cross-motion for summary judgment filed by petitioner William Bovaird, and denying the Department's motion. The New Hampshire Department of Health and Human Services (DHHS) employed petitioner as an Operations Officer I, Labor Grade 20, until it laid him off in 2009. The Department then placed petitioner on its statewide reduction in force list (RIF List). At the time, Chapter 144:65, Laws 2009 (the 2009 Law) governed the rehiring of laid-off state employees. The Department used the RIF List to place qualified laid-off employees into state positions as they became vacant. After petitioner was laid off, a Supervisor III, Labor Grade 23 position became available. According to the Department, no laid-off employees on the RIF List were eligible for the Supervisor III position; therefore, the Department released the position back to DHHS to be filled by an open-recruitment process. Petitioner applied for, and was eventually hired to fill, the Supervisor III position. In August 2012, petitioner requested that the Department restore his previously accumulated and unused sick leave, his prior seniority date, and his leave accrual rates, and that it reinstate his longevity pay. The Department denied the request. Petitioner then filed a petition for declaratory judgment and injunctive relief to require the Department to recognize him as a "recalled employee," rather than as a new hire, and to award him his benefits. The parties filed cross-motions for summary judgment. On appeal, the parties disagreed about whether the petitioner was "recalled" or "rehired" into the Supervisor III position. Petitioner argued that, because he "returned to work performing his prior duties with the same employer," there was "no rational reason to find that he was not" recalled and, thus, entitled to the benefits of a recalled employee. The Department argued that petitioner was not recalled because there are "no facts in the record regarding recalling" the petitioner and because he was not hired into the same classification. The parties also disputed the trial court's interpretation of the 2009 Law. The Supreme Court agreed with the Department that petitioner was rehired and not recalled. To be recalled, petitioner would have had to return to a position in the same classification as the position he held prior to his lay off: Operations Officer I, Labor Grade 20, instead of Supervisor III, Labor Grade 23. With such differences, petitioner did not return to the same classification, and, therefore, he was not recalled. With regard to the 2009 Law, the Supreme Court surmised that if the legislature had disagreed with the Department's longstanding interpretation, it could have altered the language of the 2009 Law. Such a change did not occur. Therefore, under the 2009 Law, the Department was not required to rehire laid-off employees from the RIF List into promotions, even if the employees meet the minimum qualifications for the position. Petitioner contended the legislative history of the 2009 Law mandated the opposite conclusion. Because the Supreme Court determined that the 2009 Law did not require the Department to rehire laid-off employees into promotions, it also conclude that the trial court erred in determining that petitioner was entitled to his previously accumulated and unused sick leave, an adjustment of his seniority date, and the other aforementioned benefits.



Court: North Dakota Supreme Court
Docket: 20140021

Judge: Kapsner

Michael Crocker appealed the grant of summary judgment that dismissed his personal injury claim against Werner Enterprises, Inc. Crocker argued Werner was vicariously liable for Alexander Morales-Santana's negligent operation of a semi-tractor and trailer under the statutory employee doctrine and because Werner retained control over Morales-Santana's work. Finding no reversible error, the Supreme Court affirmed.


Court: Ohio Supreme Court
Docket: 2013-0608

Judge: Per Curiam

Claimant was terminated from her employment for violating the written attendance policy in her union contract after she was injured at work. Thereafter, Claimant filed for temporary-total-disability (TTD) compensation for her work-related injury. The Industrial Commission concluded that, per State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., Claimant’s termination was a voluntary abandonment that barred payment of TTD compensation. Claimant then filed a complaint for a writ of mandamus. The court of appeals denied the writ, concluding that the evidence supported the Commission’s finding of voluntary abandonment. The Supreme Court affirmed, holding that Claimant failed to establish that the Commission abused its discretion when it denied her request for TTD compensation.



Court: Washington Supreme Court
Docket: 89671-2

Judge: Yu

In 2009, Kristine Failla, a Washington resident and experienced salesperson, was looking for a job she could perform from her Gig Harbor home. She e-mailed Kenneth Schutz looking for such a position. Schutz was the founder and chief executive officer (CEO) of FixtureOne Corporation, which sells fixtures, casework, and displays for use in retail stores. Both FixtureOne and Schutz are based in Pennsylvania, and at the time of Failla's email, FixtureOne had no physical presence or customers in Washington.
FixtureOne hired Failla as an account executive. In December 2010, Failla requested a promotion and a raise. Schutz agreed and promoted her to FixtureOne's vice president of sales, increased her yearly salary. Although there were outstanding commissions owed, Failla accepted the promotion and salary increase based on the assurances that the commissions would be paid. Schutz provided a draft employment agreement for Failla to sign in connection with the promotion. Among other things, the agreement contained a provision that it would be interpreted in accordance with Pennsylvania law. Failla proposed revisions to the agreement, but for reasons unknown neither Failla nor Schutz ever signed it. Failla continued working for FixtureOne from her Washington home until May 2011. She received regular paychecks, and the only issue in this case was the sales commissions owed to her that were not paid. In May 2011, Schutz emailed Failla to tell her that FixtureOne was "clos[ing] its doors" and ended her employment the following day. He assured Failla that FixtureOne would "pay your commissions and expenses asap in the next several weeks." For two months following her termination, Schutz returned Failla's requests for payment with various explanations as to why the commissions remained unpaid. Schutz eventually advised Failla that she would not receive a commission check and for the first time disputed whether such commissions were even owed. Failla filed suit against FixtureOne and Schutz for the wilfull withholding of wages, including an allegation that Schutz was individually liable under Washington's wage laws. Failla served Schutz in Pennsylvania but was unable to serve FixtureOne. Consequently the suit proceeded against Schutz alone. Failla and Schutz cross moved for summary judgment. Schutz argued that the trial court lacked personal jurisdiction because he did not have the requisite minimum contacts with the state, and even if Washington could exercise jurisdiction over him, there were genuine issues of material fact preventing the entry of summary judgment. The trial court concluded it had personal jurisdiction and denied Schutz's summary judgment motion. The court granted summary judgment to Failla, awarding double damages. The Court of Appeals reversed, holding that Washington's long-arm statute did not reach Schutz because the employment relationship between Failla and FixtureOne was inadequate to confer jurisdiction over Schutz. The Washington Supreme Court disagreed with the appellate court, and reversed.


Bd. of Educ. of Webster County v. Hanna 
Court: West Virginia Supreme Court of Appeals 
Docket: 13-1086 Judge: Ketchum
Dawn Hanna worked for the Board of Education of Webster County as a teacher from 1989 until 2012. After fundraiser proceeds went missing, Hanna was informed that she would be charged with felony embezzlement but that she could avoid prosecution by resigning from her position and paying back the missing funds. Pursuant to this discussion, Hanna resigned from her position. Hanna subsequently applied for unemployment benefits. The Board of Review of WorkForce West Virginia concluded that Hanna was disqualified from receiving unemployment compensation benefits because she voluntarily quit her job. The circuit court reversed, finding that Hanna acted under duress and that her decision to resign was not voluntary. The Supreme Court reversed, holding that WorkForce was not clearly wrong when it found that Hanna resigned voluntarily, and therefore, the circuit court erred in reversing WorkForce’s findings. 

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