Employer must permit employee to attempt to cure any defects in his or her Family Medical Leave Act request before denying it

Employer must permit employee to attempt to cure any defects in his or her Family Medical Leave Act request before denying it

Hansler v Lehigh Valley Hospital Network, USCA, 3^rd Circuit, Docket #14-1772

Deborah Hansler requested intermittent leave from her former employer, Lehigh Valley Health Network (“Lehigh Valley”), under the Family Medical Leave Act of 1993 (“FMLA”, 29 U.S.C. § 2601 et seq.

Hansler submitted a medical certification requesting leave for two days a week for approximately one month. Her complaint alleged that the medical certification refers to the length of her requested leave but not the nature or duration of her condition.

A few weeks later, after she had be absent from work for several days, Lehigh Valley, citing “excessive absences,” told Hansler that her request for leave had been denied and terminated her employment. The Circuit Court of Appeals noted that in so doing, Lehigh Valleydid not seek any clarification with respect to Hansler’s medical certification as required by law.

Hansler sued but the federal district court dismissed her complaint on the basis that the medical certification supporting Hansler’s request for leave was “invalid.” In contrast, the Circuit Court concluded that “in failing to afford Hansler a chance to cure any deficiencies in her medical certification, Lehigh Valley violated the Medical Leave Act.”

Reversing the district court, the Circuit Court remanded the matter to the district court “for further proceedings.”

The decision is posted on the Internet at:

http://www.ca3.uscourts.gov/search-opinions

Failure to exhaust administrative remedies and other procedural error result in dismissal of the employee’s efforts to have courts adjudicate her claims

Failure to exhaust administrative remedies and other procedural error result in dismissal of the employee’s efforts to have courts adjudicate her claims

2015 NY Slip Op 05779, Appellate Division, First Department

The Appellate Division said that Supreme Court correctly dismissed the complaint filed by an employee [Grievant] against New York City Department of Education (DOE), because Grievant had failed to exhaust the administrative remedies set forth in the relevant collective bargaining agreement.

Grievant, said the court, was not excused from exhausting her administrative remedies by simply alleging that her collective bargaining representative [Union] had mishandled her grievance, because she could have instituted the grievance procedure herself but failed to so.. Further, explained the Appellate Division, “This is not a case where the Unionhad sole, exclusive authority over the grievance process.*

In addition, the court noted that the City of New Yorkis not a proper party to this action, as it cannot be held liable for the Grievant’s employer, the New York City Department of Education.

As to Grievant’s claim against the Union  was not brought within the applicable four-month statute of limitations. as the statute of limitations was not tolled for the purposes of the CPLR because Grievant’s initial federal action, which was dismissed for lack of subject matter jurisdiction, was, itself, untimely. In addition, the Appellate Division said that Grievant “was not entitled to the 30-day toll [of the statute of limitations] created by the application of Education Law §3813(1) and CPLR §204(a) because the union is not an entity covered by Education Law §3813(1).”

*Typically a union has “exclusive authority” with respect to demanding arbitration of an alleged violation of a term or condition of employment set out in a collective bargaining agreement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05779.htm

Town’s misplaced trust in its Town Clerk enabled her to steal Town's funds, and again steal its monies following the initial discovery of her theft by the State Comptroller

Town’s misplaced trust in its Town Clerk enabled her to steal Town's funds, and again steal its monies following the initial discovery of her theft by the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the guilty plea of former Town of Bennington Town Clerk Tina Metz in a string of thefts from the Town that intensified even after DiNapoli’s office uncovered her criminal behavior.

On July 22, 2015 Metz pleaded guilty in Wyoming County Court to charges grand larceny in the third degree, a class D felony; offering a false instrument for filing in the first degree; and official misconduct. She was ordered to pay restitution of $33,189 for the money she stole from  fees and tax payments paid to the Town. If Metz fails to make restitution, she faces a prison sentence of 3 2/3 to 11 years.

 
Department of Audit and Control auditors and investigators initially, discovered a $14,000 shortage for 2013 and notified the Town, while continuing to work with the Wyoming County District Attorney and Sheriff’s Department. Metz repaid the town $12,000 in cash, claiming she found it at her home and in a filing cabinet at work. Subsequent investigation revealed that Metz continued to steal even after the Comptroller alerted the Town.

“The town’s misplaced trust in this clerk enabled her to steal and steal again,” DiNapoli said.  “Blind trust in a colleague doesn’t pass for proper oversight in public finance. The Comptroller thanked Wyoming County District Attorney Donald O’Geen and the Wyoming County Sheriff’s Department for partnering with the Department of Audit and Control to hold Ms. Metz accountable for her crimes.”

Town officials agreed to DiNapoli’s audit recommendations, including the timely deposit of all fees collected and monthly bank reconciliations.

Allegations of fraud involving taxpayer money may be reported by calling the Comptroller's toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Read the Town of Bennington [NY] audit report here:

http://osc.state.ny.us/localgov/audits/towns/2014/bennington.pdf

The employee must be a member of the collective bargaining unit represented by the union in order for the union to file a contract grievance on his or her behalf

The employee must be a member of the collective bargaining unit represented by the union in order for the union to file a contract grievance on his or her behalf

New York City Transit Auth. v Transport Workers Union of Greater N.Y. Local 100, 2015 NY Slip Op 06042, Appellate Division, First Department

The Transport Workers Union of Greater New York Local 100 [TWU] filed a contract interpretation grievance against the New York City Transit Authority [TA]. TWU contended that under the terms of an article, Article §5.2(j), set out in the relevant  collective bargaining agreement [CBA], certain bus maintenance employees who had trained in TWU’s Divisional area in Brooklyn and who were, following training, initially assigned to Staten Island despite their preference for an initial assignment location in Brooklyn because no other positions were available in Brooklyn at that time, were entitled to "transfer" back to Brooklyn when a new class of such employees graduated from training.

When TA denied the grievance, TWU scheduled arbitration. TA brought an Article 75 proceeding seeking a permanent stay of the arbitration. Supreme Court granted TA’s motion to permanently stay arbitration. TWU appealed but the Appellate Division unanimously affirmed the Supreme Court’s ruling.

The Appellate Division explained that TWU lacked standing to bring the grievance as it did not represent bus maintenance employees working in Staten Island. Rather, said the court, Staten Island employees were represented by Amalgamated Transit Union Local 726 [ATU]. Accordingly, the employees on whose behalf TWU had filed the grievance were not represented by TWU and TWU could not bring "contract interpretation grievance" involving §5.2(j)  of the CBA on their behalf.

Further, said the Appellate Division, the provision in the CBA relied on by TWU, §5.2(j),  applies to employees who were transferred out of its Division due to a lack of work in their title in the Brooklyn Division. Here, however, the individuals on whose behalf TWU had grieved “were not transferred out” of Brooklyn due to a lack of work. Rather these individuals were initially assigned to Staten Island upon completion of their training, which training had been given Brooklyn.

The court said that the fact that these trainees had a exercised a Brooklyn "school pick" for such training did not trigger the provisions of Article §5.2(j), as those individuals were not “employed in their title in Brooklyn.” In the words of the Appellate Division there was “no reasonable relation between the subject matter of the dispute and §5.2(j).

Finally, the Appellate Division commented that TWU's grievance appears to be, in fact, an attempt to enforce a provision of the ATU CBA, on behalf of ATU members, which violates public policy, explaining that so doing risks generating an inconsistent result with a settlement of a similar contract interpretation grievance brought by ATU, on behalf of the ATU members and under the ATU CBA.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06042.htm

Showing that an Article 78 proceeding was initiated after the statute of limitations had expired is the burden of the party making the claim of untimeliness

Showing that an Article 78 proceeding was initiated after the statute of limitations had expired is the burden of the party making the claim of untimeliness

2015 NY Slip Op 05998, Appellate Division, Third Department

The petitioner in this Article 78 proceeding [Spouse] was married to the retiree [Decedent] at the time of his death on January 11, 2011. In March 2011 the NYS Employees’ Retirement System [System] paid Decedent's ordinary death benefits to his son and his former spouse in accordance with the beneficiary designations reportedly filed by decedent.

In response to Spouse’s inquiry, the System advised her by letter dated June 12, 2013 that Decedent's death benefits had been paid out to the named beneficiaries. Spouse then commenced an action for declaratory against the System contending that she was entitled to "a portion" of Decedent's death benefits. Ultimately Supreme Court concluded that Spouse's challenge to the payment of death benefits should have been brought in a CPLR Article 78 proceeding and, after converting the action to a proceeding, dismissed the petition as untimely. Spouse appealed.

The Appellate Division, pointing out that the System "has the exclusive authority to determine the validity of beneficiary designations," said "A determination generally becomes binding when the aggrieved party is “notified” and the burden is on the party asserting the statute of limitations defense to establish that the petitioner "was provided notice of the determination more than four months before the proceeding was commenced."

In this action Spouse alleged that she was not notified when the death benefits were paid out to the beneficiaries and, in their motion to dismiss, the System failed to submit any proof that Spouse was notified or otherwise aware of the disbursement of such funds prior to June 2013.

In response to the Systems request that the Appellate Division take judicial notice of the materials appended to its brief, the court said that:

1. Most of these documents in the record on appeal were available to the System but were not submitted to Supreme Court with its motion to dismiss, and

2. These documents do not conclusively establish that [Spouse] received notice.

The Appellate Division found that “on the present record” the System failed to establish that Spouse’s action was untimely.

Considering another aspect of this litigation, the Appellate Division said that as Spouse was seeking a portion of Decedent's death benefits that were paid to the beneficiaries, those beneficiaries are necessary parties to this proceeding as their interests may be inequitably or adversely affected should Spouse prevail.

While not raised by the parties in this action, the Appellate Division commented that “the absence of a necessary party may be raised at any stage of the proceedings, by any party or by the court on its own motion."

Accordingly, the court said that the matter must be remitted to Supreme Court to order the beneficiaries to be joined if they are subject to the jurisdiction of the court or, if not, to permit their joinder by motion, stipulation or otherwise. If such joinder cannot be effectuated, “Supreme Court must then determine whether this proceeding should be permitted to go forward in the absence of these necessary parties.”

The Appellate Division reversed Supreme Court’s decision, on the law, and “remitted [the matter] to the Supreme Court for further proceedings not inconsistent with this Court's decision.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05998.htm

Pennsylvania police department is first in the state authorized to use unmanned aerial vehicles

Pennsylvania police department is first in the state authorized to use unmanned aerial vehicles

Source: AOPA’s Aviation e-Briefs

The Mount Carmel Township Police Department is the first in the state authorized by the Federal Aviation Administration to use unmanned aerial vehicles [UAV] to help during emergencies and investigations. Three officers have been trained to fly or observe the UAV, which will be used in search and rescue operations as well as general patrols.

Additional information posted on the Internet at: http://newsitem.com/news/local-police-first-in-pa-licensed-to-deploy-drone-1.1914065