Unemployment insurance benefits denied because claimant’s employment was terminated due to misconduct

Unemployment insurance benefits denied because claimant’s employment was terminated due to misconduct

Matter of Malcolm (Honeoye Falls-Lima Cent. Sch. Dist.--Commissioner of Labor), 2015 NY Slip Op 07306, Appellate Division, Third Department

The Unemployment Insurance Appeal Board ruled, among other things, that Bernice Malcolm was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Malcolm, a special education teacher, challenged the Board’s finding that she lost her employment due to disqualifying misconduct, stemming from conduct and circumstances that led to the preferment of charges by the employer against her.

The Appellate Division said that it is well settled that a "[v]iolation of an employer's known policies, as well as unauthorized absence from work, have been held to constitute disqualifying misconduct," citing Matter of Maldonado, 118 AD3d 1246.

Here, said the court, the record establishes that, although the employer informed Malcolm that approval for an unpaid leave of absence was required before she commenced an administrative internship at another school, Malcolm failed to request any leave of absence and, instead, used paid sick leave for part of that period. In addition, the record indicated that Malcolm did not submit to a scheduled medical examination required by her employer in order to validate her absence from work or comply with her employer's directive to return to work. The decision also noted that testimony by her employer also established that Malcolm abused the employer's paid leave and bereavement polices on various other occasions.

Under the circumstances presented herein, the Appellate Division found that the Board's finding of misconduct is supported by substantial evidence in the record. As to Malcolm assertion that her absences were justified and not improper, the court said that “this claim presented a credibility issue for the Board to resolve.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07306.htm

A correction officer’s work-related injury must be caused by direct interaction with an inmate in order to qualify for RSSL §507-b disability retirement benefits

A correction officer’s work-related injury must be caused by direct interaction with an inmate in order to qualify for RSSL §507-b disability retirement benefits

Laurino v DiNapoli, 2015 NY Slip Op 07327, Appellate Division, Third Department

Helena T. Laurino, a correction officer, worked in the Regional Medical Unit at Fishkill Correctional Facility. When an inmate informed her that another inmate was having a seizure, she investigated and found the inmate walking in a daze. When Laurino and a nurse “slowly lowered him to the floor, he went limp and started to fall.”

Although the inmate did not struggle or strike Laurino while she was holding on to him, she, nevertheless,  injured her right shoulder while guiding his fall. As a result of this incident, she filed an application for performance of duty disability retirement benefits pursuant to Retirement and Social Security Law §507-b.

Laurino’s application was denied by the NYS Employees' Retirement System on the ground that her injury was not the result of an act of an inmate. Following a hearing, a Hearing Officer agreed and recommended that Laurino's application be denied. The Comptroller accepted the Hearing Officer's recommendation and issued a final determination denying her benefits.

The Appellate Division affirmed the Comptroller’s decision, noting that Retirement and Social Security Law §507-b (a) provides for performance of duty disability retirement benefits to correction officers employed by the Department of Corrections and Community Supervision who are unable to perform their job duties "as the natural and proximate result of an injury, sustained in the performance or discharge of [their] duties by, or as a natural and proximate result of, an act of an inmate."

While the statute does not specifically define an "act of an inmate," the court said that the legislative history reveals that "the statute was clearly intended to compensate correction officers who, because of the risks created by their 'daily contact with certain persons who are dangerous [and] profoundly antisocial' . . . become permanently disabled."

The Appellate Division explained that, in accordance with this intent, courts have construed the language to require that the injuries be caused by direct interaction with an inmate in order to qualify for benefits under the statute.

Although Laurino contended that she had direct interaction with the inmate while she was lowering him to the floor during his seizure, citing Esposito v Hevesi, 30 AD3d 667, the court pointed out that in analogous circumstances where a correction officer was injured while assisting an incapacitated inmate during a medical emergency, it held that the "inmate was not engaged in any act that was a proximate cause of [Esposito's] . . . injury."

The Appellate Division ruled that substantial evidence in the record supported the Comptroller’s denial of Laurino‘s application on the basis that her injuries were not the result of an act of an inmate within the meaning of Retirement and Social Security Law §507-b, explaining that it perceived no meaningful distinction between this case and the ruling in Esposito v Hevesi.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07327.htm

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Only persons who are directly affected by the act or omission being challenged have standing to appeal to the Commissioner of Education pursuant to Education Law §310

Only persons who are directly affected by the act or omission being challenged have standing to appeal to the Commissioner of Education pursuant to Education Law §310

Appeal of Diane Payson, Decisions of the Commissioner of Education, Decision 16,830

This appeal challenged the elimination of certain school counselor positions and implementation of its guidance program. 

Diane Payson, a certified school counselor, was previously employed by the Mount Pleasant Cottage Union Free School District, a special act school district.  The district made staff reductions in its counseling program. Initially Payson’s full-time position was changed to a part-time position, effective June 30, 2014 and subsequently her position was abolished effective September 23, 2014.

Payson contended, on behalf of students in grades nine through twelve, that the School District’s guidance counselor program does not meet the requirements set forth in §100.2 of the Commissioner’s regulations, alleging that as a result of the elimination of her position there are no certified school counselors in the district and that School District is improperly using untrained certified social workers and school psychologists to take on the duties of a school counselor.  Payson asked the Commission to direct the School District to reinstate her to her full-time school counselor position in the guidance program, “with compensation for lost salary.”

Addressing a procedural issue, standing, the Commissioner said that an individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights and only persons who are directly affected by the action being appealed have standing to bring an appeal.

To the extent that Payson’s appeal alleges that by eliminating her school counselor position and those of others, the School District is not in compliance with Commissioner’s regulations in providing guidance programs to students in grades nine through twelve the Commissioner noted that [1] she did not allege that she is the parent of any student in School District and [2] she may not assert the rights of children not her own. Accordingly, the Commissioner ruled that to the extent that Payson asserted claims on behalf of students, she lacks standing to maintain the appeal and such claims must be dismissed. 

To the extent that Payson complains of the loss of her employment as a result of the School District’s alleged noncompliance with Commissioner’s regulations, for which she seeks reinstatement and back pay as relief, she has alleged the requisite personal injury.  Consequently, said the Commissioner, Payson had standing to maintain that claim.

The Commissioner then dismissed Payson’s appeal on the merits, explaining that in  an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. Citing Steele v. Bd. Of Educ. of the City of New York, 40 NY2d 456, the Commissioner noted that the Court of Appeals has held that “[i]t is not enough to merely show ... that all guidance counseling positions have been eliminated....  The requisite programs could likely be maintained by utilizing the services of certified personnel whose primary duties are in other positions.  Since there has been no showing that any guidance and counseling programs have been wholly eliminated, we conclude that this portion of the petition was properly dismissed....”

Other than speculation, the Commissioner said that Payson did not introduce any evidence that School District is not providing a guidance program in compliance with §100.2(j) of the Commissioner’s regulations. Accordingly, the Commissioner said that “On this record” she could not conclude that Payson has carried her burden and established a clear right to relief.

Notwithstanding the Commissioner’s being “constrained to dismiss the appeal,” she said  “I am mindful that the student population in respondent’s school district consists of students with disabilities and that any failure to provide services prescribed in a student’s individualized education program, including the provision of transition services, may constitute a violation of the federal Individuals with Disabilities Education Act, Article 89 of the Education Law, and/or Part 200 of the Commissioner’s regulations.”

The Commissioner then opined that although Payson did not carry her “burden of proof sufficient to warrant relief in this appeal, the record does present issues worthy of review by my Office of Special Education.” The Commissioner then said she would refer this matter to that office for review to ensure that the School District’s guidance program “is sufficient to ensure compliance with requirements of federal and State law pertaining to students with disabilities.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16830

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A court’s review of the disciplinary penalty imposed on an employee is whether the penalty imposed constitutes an abuse of discretion as a matter of law

A court’s review of the disciplinary penalty imposed on an employee is whether the penalty imposed constitutes an abuse of discretion as a matter of law

Peterson v City of Poughkeepsie, 2015 NY Slip Op 07031, Appellate Division, Second Department

Ronald J. Knapp, as Acting City Administrator of the City of Poughkeepsie, terminated Carleton Peterson, a street supervisor employed by the City of Poughkeepsie Department of Public Works, after Peterson was found guilty of three charges of misconduct, which included, falsifying his time records.

Following his termination, Peterson commenced an Article 78 proceeding to review Knapp’s determination. The Appellate Division granted Peterson’s petition to the extent of annulling the finding of guilt with respect to certain charges, dismissing those charges, and annulling the penalty imposed. The court than remitted the matter to the City for a new determination as to the penalty to be imposed in connection with the charges that were sustained.

After a new hearing Knapp again imposed the penalty of termination of Peterson's employment.

Peterson commenced this second CPLR Article 78 proceeding seeking, among other things, a review of the penalty imposed following the second disciplinary hearing. The Supreme Court annulled Knapp’s decision terminating Peterson’s employment and remitted the matter to the City for a new hearing on the issue of the imposition of a lesser penalty and a new determination thereafter.

Poughkeepsie appealed the Supreme Court’s ruling and the Appellate Division reversed the Supreme Court’s order annulling Knapp’s decision to terminate Peterson.

The Appellate Division said that “Judicial review of an administrative penalty is limited to whether the mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law” and, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, observed that a court may only set aside an administrative agency's determination if the punishment or discipline imposed is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law.

The Appellate Division then ruled that under the circumstances of this case, where the Peterson was found guilty of having submitted a falsified time sheet, the penalty of dismissal from employment “was not so disproportionate to the offenses as to be shocking to one's sense of fairness.”

Accordingly, said the court, Supreme Court should have denied that branch of Peterson’s petition seeking to annul the Acting City Administrator's determination terminating his employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07031.htm

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Is it a health insurance claim or a workers compensation claim?

Is it a health insurance claim or a workers compensation claim?

Source: CFO Daily Alert

The CFO Daily Alert reports that for some common ailments, like soft-tissue back, knee, or shoulder pain, it’s often not clear whether the injury was work-related or non-occupational. Physicians are given a degree of discretion under workers’ compensation law to make that determination, which creates a conflict of interest, because they usually end up benefiting financially by classifying the injury as work-related. An ongoing shift to the “capitation” model for reimbursing medical providers leads them to classify more injuries as work-related.

This is because workers’ compensation reimbursement rates are established by law, and they are almost always at higher rates than rates contracted with insurers or self-insured employers.

The article is posted on the Internet at:

http://ww2.cfo.com/workers-compensation/2015/10/trendy-health-care-payment-scheme-hikes-workers-compensation-costs/?utm_campaign=CFODailyAlert&utm_nooverride=1&utm_source=CFO-email&utm_medium=email&utm_content=CFODailyAlert_Thursday_2015-10-8&utm_term=workers-compensation&mkt_tok=3RkMMJWWfF9wsRonvarPZKXonjHpfsXw6uwoXK%2Bg38431UFwdcjKPmjr1YEJSsdlI%2BSLDwEYGJlv6SgFT7TFMaxo0bgJWRM%3D

Application of a former police officer removed from the position by operation of law for reinstatement to the position denied

Application for reinstatement of a former police officer removed from the position pursuant to Public Officers Law §30(1)(e) denied

Roth v Town of Newburgh, 2015 NY Slip Op 07033, Appellate Division, Second Department

Public Officers Law §30(1)(e) is a self-executing statute which provides that a public office is deemed vacant upon incumbent’s conviction of a felony, or a crime involving a violation of his or her oath of office.

However, a public officer, other than an individual elected to public office, removed from his or her public office pursuant to §30(1)(e) "may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy."

§30(1)(e) further provides that upon the receipt of an application for reinstatement from an officer who had been so removed “by operation of law,” "the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted."

Roger S. Roth submitted an application for reinstatement to his former position as a police officer following his removal from his position pursuant to §30(1)(e).

A hearing was held and the hearing officer recommended that Roth’s application for reinstatement to his former position be denied. The appointing authority adopted the findings and recommendations of a hearing officer, denying Roth’s application for reinstatement to his position as a police officer. Roth appealed the denial of his application for reinstatement.

The Appellate Division sustained the appointing authority’s determination, holding that the denial of Roth’s application for reinstatement to his position as a police officer was supported by substantial evidence in the record and dismissed Roth’s appeal “on the merits.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07033.htm

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A “memorandum of understanding” that is characterized as an “agreement to agree” is not an enforceable contract

A “memorandum of understanding” that is characterized as an “agreement to agree” is not an enforceable contract

Offit v Herman, 2015 NY Slip Op 07056, Appellate Division, First Department

Michael Offit contended that a memorandum of understanding [MOU] that the parties had signed was a "Type II" agreement under federal case law,* requiring Julian M. Herman to negotiate in good faith to finalize a settlement of various lawsuits among the parties.

Citing IDT Corp. v Tyco Group, 13 NY3d 209, the Appellate Division said the New York Court of Appeals has rejected "the rigid classification into Types'" in favor of asking "whether the agreement contemplated the negotiation of later agreements and if the consummation of those agreements was a precondition to a party's performance."

The MOU at issue stated that the parties had reached an "agreement in principle, subject to documentation acceptable to the parties and court approval." However, noted the Appellate Division, in prior motion practice, counsel for Offit admitted that the MOU was merely "an agreement to agree."

* The differences between Type I preliminary agreements and Type II preliminary agreements as applied by the federal courts is considered at:

http://www.insidecounsel.com/2013/03/14/litigation-preliminary-agreements-may-not-be-as-pr

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07056.htm

Employer directed to reconsider the penalty imposed following the annulment of some, but not all, of the disciplinary charges and specifications filed against the employee

Employer directed to reconsider the penalty imposed following the annulment of some, but not all, of the disciplinary charges and specifications filed against the employee

Graham v New Hampton Fire Dist., 2015 NY Slip Op 06917, Appellate Division, Second Department

The New Hampton Board of Fire Commissioners adopted, in part and rejected in part the recommendation of a hearing officer, made after a disciplinary hearing and found Daniel Graham, a member of the fire department, guilty of insubordination, misconduct, incompetence, and conduct unbecoming of a member of the fire department. The Fire District imposed the penalty of termination of Graham’s employment with the district.

Graham appealed and the Appellate Division vacated the penalty imposed, termination, because it annulled some, but not all of the charges, filed against Graham. The court then confirmed the determination with respect to the remaining charges and specifications and remanded the matter the New Hampton Board of Fire Commissioners for to determine the appropriate penalty to be imposed in consideration of the charges that survived the Appellate Division’s scrutiny and to then impose that penalty.*

The court explained that judicial review of an administrative determination made after a hearing at which evidence is taken is limited to consideration of whether that determination is supported by substantial evidence. While the Board's determination as to Specification One of Charge One is supported by substantial evidence in the record, the Appellate Division said that the Board's determination that Graham was guilty of the misconduct alleged in Specification Two of Charge One must be annulled because it was “duplicative of the Board's determination in connection with Specification One of Charge One, citing Levi v Lauro, 58 AD3d 851.

The court found that with respect to Specification One of Charge Two, the Board's determination was supported by substantial evidence.** The Appellate Division noted that the Board had credited one witness's testimony that was based in part upon the statements and observations of her children. However, said the court, hearsay statements are admissible in administrative proceedings, and may form the basis for an agency's determination.

Observing that certain testimony conflicted with other testimony and that such conflicting testimony presented issues of credibility, the Appellate Division explained that, in the works of the court, “Where room for choice in administrative fact finding exists, a reviewing court may not weigh the evidence or reject a rational credibility determination made by the administrative decision maker,” citing Berenhaus v Ward, 70 NY2d 436.

* The Board had imposed a penalty of termination of Graham’s membership in the District's fire department upon a finding that he was guilty of Charges One and Two. As the court dismissed Charge One, Specification Two and Charge Two Specification Two, the penalty imposed was annulled and the matter returned to the Board to consider the appropriate penalty to be imposed upon Graham with respect to the surviving charges and specifications, Charge One, Specification One and Charge Two, Specification One.

** As to the Board's determination with respect to Specification Two of Charge Two, the Board conceded that its determination was not supported by substantial evidence and thus was annulled.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06917.htm

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A two-step test is used by New York court to determine if a grievance is arbitrable

A two-step test is used by New York court to determine if a grievance is arbitrable

Incorporated Vil. of Floral Park v Floral Park Police Benevolent Assn.,2015 NY Slip Op 07026, Appellate Division, Second Department

The Floral Park Police Benevolent Association [PBA] filed a grievance alleging that its members, who worked during and in the aftermath of Superstorm Sandy, from October 29, 2012, through November 5, 2012, were entitled to additional compensation from the Incorporated Village of Floral Park pursuant to their Collective Bargaining Agreement. Unsuccessful in the three-step grievance procedure, the PBA demanded that the grievance be submitted arbitration.

The Village commenced an Article 75 action seeking a court order to stay the arbitration, whereupon the PBA filed a cross-petitioned to compel arbitration. The Supreme Court granted the Village's petition and the PBA appealed.

The Appellate Division reversed the Supreme Court action, on the law, granted the PBA’s petition to compel arbitration is granted. The court ordered the parties to proceed to arbitration noting that public policy in New York favors arbitral resolution of public sector labor disputes.

However, the Appellate Division explained, a dispute between a public sector employer and employee is only arbitrable if it satisfies a two-prong test. First the court must determine if there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If it passes this test, the court must then determine whether the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

The Village did not claim that arbitration of this grievance was prohibited by statute or public policy, nor did the Appellate Division find that such a prohibition, in fact, existed.

As to the second test, did the parties agreement to submit the focus of the grievance to arbitration, the court said that was only necessary to determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA. In this instance the court said that relevant provisions of the collective bargaining agreement were broad, as they provide for arbitration of any grievance, defined as "any claimed violation, misinterpretation or inequitable application of this Agreement," which remains unresolved following completion of step three of the grievance procedure. 

The Appellate Division found that there was a reasonable relationship between the subject matter of the dispute, which involves compensation over a specific time period, and the general subject matter of the CBA, and thus was arbitrable.

As to defects alleged by Village, [1] that the evidence did not support the grievance and that [2] the PBA failed to comply with the time limits for bringing the grievance, the Appellate Division said that both issues were for the arbitrator to determine.

The Appellate Division said that the "threshold determination of whether a condition precedent to arbitration exists and whether it has been complied with, is for the court to determine" In contrast, "[q]uestions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration."

Here the CBA does not specify that a grievance must be personally pursued by an aggrieved member as a condition precedent to arbitration. Thus the issue as to whether the PBA complied with the grievance process is one of procedural arbitrability to be resolved by the arbitrator.

Finding that the PBA complied with the requirement that a grievance be presented to and discussed with a supervisor "within fifteen (15) days of an alleged grievance," and that the PBA president timely discussed the grievance with his supervisor after the Village first informed him that members of the Village's police department would not receive additional compensation for time worked from October 29, 2012, through November 5, 2012, the Appellate Division ruled that Supreme Court should have denied the Village's petition to stay arbitration and granted the PBA's cross petition to compel arbitration, and directed the parties to proceed to arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07026.htm

The reasons that would support the vacating of a disciplinary penalty imposed by the arbitrator following a disciplinary hearing are limited

The reasons that would support the vacating of a disciplinary penalty imposed by the arbitrator following a disciplinary hearing are limited

Esteban v Department of Educ. of the City School Dist. of the City of N.Y., 2015 NY Slip Op 06965

The New York City Department of Education [DOE] had filed disciplinary charges against Damian Esteban, a teacher employed by DOE, which were submitted for adjudication to an arbitrator pursuant to Education Law §3020-a. The arbitrator sustained certain of the charges and specifications and determined that the appropriate penalty for Esteban's misconduct was dismissal.

Esteban filed a petition to seeking a court order vacating that portion of a disciplinary arbitrator's decision that imposed the penalty of termination of his employment as a public school teacher. Supreme Court granted Esteban’s petition and remanded the matter for the imposition of an appropriate lesser penalty.

DOE appealed and the Appellate Division unanimously reversed the Supreme Court’s ruling on the law and dismissed the proceeding.

Citing Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, the court explained that an arbitration award determining an employment dispute in public education may not be vacated unless "it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The Appellate Division held that the penalty of dismissal was not irrational and was not against public policy. Nor, said the court, was it ultra vires* for the arbitrator to determine that Esteban's public possession of heroin warranted the penalty of dismissal.

Citing Lackow v Department of Education, 51 AD3 563, the court then held that imposing termination of employment as a penalty for such misconduct not "so disproportionate to the offense as to be shocking to the court's sense of fairness."

* An "ultra vires" act refers to an act or action that was beyond the scope of the authority of the arbitrator to perform. Here the court concluded that the penalty imposed on Esteban was not ultra vires.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06965.htm

______________

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