Selected Reports issued by the Office of the State Comptroller during the week ending February 6, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending February 6, 2016

Click on text highlighted in color to access the full report

Former Monroe County Chief Information Officer enters guilty plea in bid-rigging case
Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Nelson Rivera, the former Chief Information Officer for Monroe County, for working with others to rig the bidding process for multi-million dollar public works contracts in Monroe County. Rivera entered a guilty plea before The Honorable Dennis M. Kehoe in Monroe County Court to two counts of the class “E” felony charge of Combination in Restraint of Trade and Competition in violation of General Business Law §§ 340 and 341, also known as New York State’s Donnelly Act. Based on what was stated on the record in court proceedings, it is expected that Rivera will be sentenced to five years of probation, may never again serve as a New York public employee, must pay a $25,000 fine, and will give up his government pension.

http://www.osc.state.ny.us/press/releases/feb16/020316a.htm?utm_source=weeklynews20160207&utm_medium=email&utm_campaign=020316arelease

Florida resident to make full restitution after stealing $274,920.16 in New York State pension funds
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced that Marc A. Eletz, 70, a resident of Boca Raton, Florida, was sentenced in Albany County Court to five months in jail, $200,000 in restitution and signed a confession of judgment in the amount of $74,920.16 for stealing $274,920.16 in New York state pension benefits. Eletz previously pleaded guilty to the crime of Grand Larceny in the Third Degree, a class D felony, in September 2015.

http://www.osc.state.ny.us/press/releases/feb16/020416.htm?utm_source=weeklynews20160207&utm_medium=email&utm_campaign=020416release

State Audits published

Metropolitan Transportation Authority - Bus Driver Licensing

Metropolitan Transportation Authority Metro-North Railroad - Payments to On-Board Service Managers

Office of Court Administration - Reporting on Foreclosure of Real Property Funds – Kings County

Municipal Audits published

Town of Ausable - Water and Sewer District Financial Operations

Fishers Island Waste Management District – Purchasing

Town of Guilderland – Employee Compensation and Benefits

Plattsburgh Housing Authority – Tenant Rents

Town of Salem – Financial Management

Westbury Water District - Purchasing


School Audits published

East Islip Union Free School District – Financial Condition

Elizabethtown-Lewis Central School District – Claims Processing

George Junior Republic Union Free School District – Tuition Billing

Otsego Northern Catskills Board of Cooperative Educational Services – Extra Classroom Activity Fund

From the Blogs - Focusing on Unlawful Discrimination - Posted by Employment Law News

From the Blogs - Focusing on Unlawful Discrimination - Posted by Employment Law News
WK WorkDay, A service provided by Wolters Kluwer Legal & Regulatory U.S.[http://www.employmentlawdaily.com/] [Internet links highlighted in color]

Stretching the boundaries of federal discrimination laws by Lorene D. Park, J.D.

Religious accommodation of an atheist employee, protecting a male employee against sexual harassment, and prohibiting discrimination against white employees, are just a few recent examples of the broad reach of our federal anti-discrimination laws. Those laws may have developed in reaction to injustices against particular groups of individuals (e.g., African-Americans), but the law today is more focused on categorical discrimination (e.g., discrimination based on race—any race). Moreover, those categories, including race, gender, religion, disability, and more, are expanding. Some recent examples:

Atheist employee fired for taping over religious message on ID badge.

An atheist employee, who was fired after refusing to remove the tape covering an employer’s religious mission statement on the back of his company ID badge, can proceed to trial on his Title VII and state law failure-to-accommodate and retaliation claims, ruled a federal district court in Pennsylvania. Whether the accommodation would impose an undue hardship on the employer will be determined at trial (Mathis v. Christian Heating and Air Conditioning, Inc.).

Male victims of sexual harassment.

Recent cases indicate male employees are not taken as seriously as female employees when they complain of sexual harassment, but courts interpret Title VII to afford them the same protections. For example, when a male mechanic repeatedly complained that a male coworker followed him into the restroom, made sexually inappropriate comments, discussed homosexual sex acts, and touched him physically, his supervisor treated the complaint as a joke. The mechanic then complained to HR, which encouraged him to “do what was right for the company,” especially considering how a complaint over “gay rights” would appear. Perhaps unsurprisingly, a federal court sent his hostile work environment claim under Title VII to trial (Davis v. Gregory Poole Equipment Co.).

In another case, when a male maintenance worker complained that a female manager made unwanted advances, remarked on his looks, and sexted him, a safety director suggested the texts were meant for someone else and told the worker to confront her and work things out himself. After he was fired and filed suit, the director admitted he might have reacted differently if the alleged victim of harassment had been female. Though the employee’s sexual harassment claim failed because the misconduct wasn’t severe or pervasive, his retaliation claim survived summary judgment to the extent it was based on his complaint to the director, that had he been female and the harasser male, the employer would have reacted differently. The employer failed to oppose this argument (Gilley v. Kelly & Picerne, Inc. dba Alabaster Bay Apartment Homes).

Sexual harassment by wannabe mother-in-law.

In one rather unusual case, a court found that a TV station employee stated a plausible sexual harassment claim where she alleged not a single sexual advance. Instead, she claimed that a female supervisor had her fired after she rejected the ongoing attempts by the supervisor to get the employee marry her son, who was also the company’s CEO. At one point, on a business trip, the supervisor said “I’m going to be your mother one way or another. Either you will marry [the CEO] or I will marry your father and be your stepmother” (Allen v. TV One, LLC).

White employee fired for policy violation while minorities were not.

An employee at an early education center claimed her employer violated Title VII by firing her because she is white. She had asked an African-American coworker, who was also a student’s grandmother, to ask her daughter to call the school about substituting Almond Milk for regular milk with respect to the student. The employee was fired for allegedly discussing private information with someone other than a parent or guardian. Finding triable issues of fact on her race discrimination claim, the court noted evidence that African-American employees also violated policy but were not fired, and that the employee’s conduct may not actually have violated confidentiality requirements (Callaway v. Region 10 Education Service Center).

Associational discrimination – disability.

Another type of discrimination recognized under federal laws involves bias against an employee based on close association with someone who falls within a protected category (e.g., partner, child, other family member). These types of cases often occur under the ADA, which specifically prohibits discrimination against a qualified individual because of the disability of an individual with whom he or she is known to have a relationship or association. In one case, a senior VP’s note that an employee was “given special consideration” and her supervisor’s remark about her “retarded brother” suggested that her relationship with her blind and severely autistic brother-in-law was a factor in the decision to fire her, so her association discrimination claims would go to trial (Smith v. First Tennessee Bank, N.A.). In another case, an employee who alleged he was fired after missing several weeks to care for his ailing wife, who had spinal meningitis, stated a plausible claim for relief under the ADA’s discrimination by association provision (Pollere v. USIG Pennsylvania, Inc.).

Interracial couples and associational discrimination.

Another type of associational discrimination involves interracial couples. In one recent Title VII case, two employees were treated differently after they started dating because one was black and the other was white. They were told by their supervisors that their relationship was “disgusting” and “sickening” and supervisors started enforcing rules against them (like no personal calls at work, and no eating lunch at another employee’s work station) but did not enforce those rules against others (Autrey v. State of Maryland). In another case, a Native American employee who was dating an African-American man will have a jury decide whether her supervisors subjected her to a hostile work environment based on her association with her boyfriend. She claimed they repeatedly engaged in offensive and threatening behavior, including calling biracial couples “n***er lovers” and biracial kids “half n***er” (Maddox v. Grimmer Realty).

Age discrimination as between two older employees.

Under the ADEA, it is unlawful to discriminate based on someone’s older age (age 40 and over, to be specific) but not against someone who is younger than 40. In that respect, there really is no “reverse” age discrimination under the ADEA. However, the Act is still flexible in that, as between two employees who are both over the age of 40, employers cannot unlawfully favor the younger of the two if the age difference is “substantial” (most courts find 10 years or more to be significant). Yet difference in ages is not the only consideration. In one case, a border patrol agent in his mid-50’s who was denied a promotion given to four individuals in their 40’s did not have an age difference of more than 10 years, but other factors suggested age was considered, including the decisionmaker’s questions on the employee’s plan for retirement and an expressed preference for hiring “young, dynamic agents” for the new positions (France v. Johnson).

Sex stereotyping.

Discrimination based on a failure to conform to the stereotype of masculine and feminine is considered sex discrimination. In one case, evidence that harassment such as being threatened, physically restrained, punched, and poked in the anal region was directed at male employees of an oil and gas company crew who were considered “less manly” was enough to send one harassed employee’s Title VII claims to the jury (Arredondo v. Estrada). In another case, a federal court in Oregon held that a jury should decide the sex discrimination claims of a medical technician who alleged that her employment contract was not renewed because she was considered a “strong woman” who wanted to do things “her way” (Tornabene v. Northwest Permanente, P.C.). Similarly, a federal court in Michigan found triable issues of fact on a hotel housekeeper’s Title VII claim that she was terminated because she failed to conform to traditional gender stereotypes. Specifically, the supervisor allegedly said the housekeeper was too “mannish” and that the supervisor didn’t want to work with her because she “acted too manly” (Reed v. South Bend Nights, Inc. dba Best Western Hospitality Hotel).

Transgender discrimination.

Some interesting issues are emerging in discrimination cases by transgender employees. In one case, the Eleventh Circuit reversed summary judgment on a Title VII claim, finding that comments by a company owner that he was “very nervous” about a auto mechanic’s gender transition and the “possible ramifications” that it might affect business, as well as the imposition of discipline only after the mechanic announced her gender transition, raised triable questions on whether gender bias was a motivating factor in the decision to terminate the mechanic (Chavez v. Credit Nation Auto Sales, LLC). In another case involving claims that an employer fostered a hostile work environment by demanding an employee provide overly intrusive personal information on his anatomical changes, among other actions, the employer sought the same kind of information in discovery, including details on the employee’s surgeries and hormone therapy. Finding the requests “grossly out of proportion” to what the employer legitimately needed for its defense, the court denied its motion to compel production of the evidence (Roberts v. Clark County School District).

What about sexual orientation?

One question that crops up repeatedly is: Why do courts consider it to be sex discrimination to treat someone unfavorably because they do not fit sexual stereotypes, yet most courts don’t consider discrimination against homosexual individuals to be discrimination “based on sex?” Recently, the EEOC filed an amicus brief with the Eleventh Circuit in Burrows v. College of Central Florida, asserting that sexual orientation is equal to sex discrimination because: 1) it necessarily involves sex stereotyping; 2) it amounts to gender-based associational discrimination; and 3) Title VII generally bars sex-based considerations in employment and sexual orientation discrimination necessarily requires consideration of an individual’s gender.

I think the EEOC has it right in this case and, given the ways in which federal anti-discrimination laws have been interpreted in recent years, courts will likely adopt its reasoning. Interestingly, one federal court agreed with the EEOC while addressing a case under a New York City law, and it noted that a “change towards federal protection has been primarily a result of [the EEOC’s] sensitivity to the problem.” In the case at bar, the court refused to overturn a $100,000 award to a lesbian UPS employee who endured years of harassment due to her sexual orientation. It explained that appeals to the Bible could not justify management’s condoning the harassment and, noting the company’s “cavalier” attitude toward the employee’s repeated complaints, the court found plenty of evidence to support the verdict in the employee’s favor under the New York City Human Rights Law (Roberts v. United Parcel Service, Inc.).

Appellate Division holds Civil Service Law Article 14 trumps Second Class Cities Law Article 9 with respect to negotiating police disciplinary procedures

Appellate Division holds Civil Service Law Article 14 trumps Second Class Cities Law Article 9 with respect to negotiating police disciplinary procedures

City of Schenectady v New York State Pub. Empl. Relations Bd., 2016 NY Slip Op 00729, Appellate Division, Third Department

The City of Schenectady [Schenectady], under color of §133 of Article 9 of Second Class Cities Law,* announced that it would no longer be bound by negotiated police disciplinary procedures then set out in a collective bargaining agreement between Schenectadyand the Schenectady Police Benevolent Association [PBA]. Schenectady advised PBA that was replacing the contract disciplinary procedure, under which an employee upon whom disciplinary charges had been served had the right of appeal to an arbitrator, and, instead, unilaterally adopted disciplinary procedures that substituted the Public Safety Commissioner for the arbitrator as the ultimate administrative disciplinary decision maker.

PBA filed an improper practice charge with Public Employment Relations Board [PERB] alleging that Schenectady violated Civil Service Law §209-a(1)(d) of the Public Employees' Fair Employment Act [Article 14 of the Civil Service Law], the so-called “Taylor Law.

Following a hearing, an Administrative Law Judge agree with PBA, finding that, under the Taylor Law, police disciplinary procedures must be the product of collective bargaining, and that the Taylor Law superseded the provisions of the Second Class Cities Law upon which Schenectady had relied in unilaterally adopting that statute's police disciplinary procedures. PERB affirmed the Administrative Law Judge's ruling, holding that that Schenectady's police disciplinary procedures were a mandatory subject of collective bargaining.**

Schenectady appealed PERB’s determination. Supreme Court upheld PERB's ruling and dismissed Schlenectday's petition.

Schenectady challenged the Supreme Courts ruling, arguing that Supreme Court erred by agreeing with PERB that the enactment of the Taylor Law superseded §133 of Article 9 of the Second Class Cities Law. The Appellate Division, noting that while this is a question of pure statutory construction and it is not dependent upon any special competence of PERB, said that “its own reading of the statutes at issue here led it to agree with Supreme Court that PERB's construction of the Second Class Cities Law, as it relates to the Taylor Law, was correct.

Indicating that the Taylor Law mandates that disciplinary procedures for all public employees be the subject of good faith collective bargaining, the Appellate Division commented that “courts have long recognized the 'strong and sweeping policy of the State to support collective bargaining under the Taylor Law.’" Citing Matter of City of New York v Patrolmen's Benevolent Assn. of the City of N.Y., Inc., 14 NY3d 46, the Appellate Division held that "the presumption is that all terms and conditions of employment are subject to mandatory bargaining."***

That said, the court commented that because of the "competing policy ... favoring strong disciplinary authority for those in charge of police forces[, w]here legislation specifically commits police discipline to the discretion of local officials," the policy favoring collective bargaining will give way to the legislatively established disciplinary procedures, citing Police Benevolent Asso. of NY State Troopers, Inc., v Division of NY State Police, 11 NY3d 96.

It was undisputed that Second Class Cities Law §133, which was enacted prior to the Taylor Law, expressly commits police discipline to the discretion of Schenectady's Public Safety Commissioner. However, said the court, the “Second Class Cities Law [Article 2] §4 states that a provision of this statute — such as Article 9 [§133] containing its police disciplinary procedures — shall apply only ‘until such provision is superseded pursuant to the municipal home rule law, was superseded pursuant to the former city home rule law or is or was otherwise changed, repealed or superseded pursuant to law.’"

The Appellate Division noted that PERB’s decision said that such language reveals "a statutorily planned obsolescence for [the Second Class Cities Law] resulting from subsequent enactment of state or local legislation." Put differently, the court explained that it viewed “the clear and unambiguous language of Second Class Cities Law §4” as providing “the best evidence that the Legislature intended to allow any or all of the provisions of the Second Class Cities Law to be supplanted by later laws applicable to the same subject matter.”

The Appellate Division concluded that Second Class Cities Law §133 does not require "that the policy favoring collective bargaining should give way" [to it] “nor did the court view the holdings in Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563and Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836) (19 NY3d 1066 to require reversal of Supreme Court's judgment.

In each of those cases, explained the court, the Court of Appeals confined its analysis to the specific language of the statutes at issue, none of which included a broad supersession provision such as the one confronting us in Second Class Cities Law §4. In view of the “clear distinction”, the Appellate Division said it could not conclude that either of these cases controls the outcome of this appeal.

* Article 9, § 133. Rules, orders and regulations, provides, in pertinent part, “The commissioner of public safety … is authorized and empowered to make, adopt, promulgate and enforce reasonable rules, orders and regulations for the government, discipline, administration and disposition of the officers and members of the police and fire departments, and for the hearing, examination, investigation, trial and determination of charges made or prepared against any officer or member of said departments for neglect of official duty or incompetency or incapacity to perform his official duties or some delinquency seriously affecting his general character or fitness for the office, and may, in his discretion, punish any such officer or member found guilty thereof by reprimand, forfeiting and withholding pay for a specified time, supension [sic] during a fixed period or dismissal from office; but no officer or member of said departments shall be removed or otherwise punished for any other cause, nor until specific charges in writing have been preferred against and served upon him, and he shall have been found guilty thereof, after reasonable notice and upon due trial before said commissioner in the form and manner prescribed by law and the rules and regulations of the department.

** See 46 PERB 3025.

*** It does not appear that the Appellate Division’s considered Civil Service Law §76.4, which provides, in pertinent part, that “Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter.” It could be argued that this language indicates a legislative intent that negotiating disciplinary procedures to “supplement, modify or replace” §§75 or 76 of the Civil Service Law be permissive rather than mandatory [or prohibited] subjects of collective bargaining within the meaning of the Taylor Law [Article 14 of the Civil Service Law].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00729.htm

From the Blogs - Posted by Employment Law News, WK WorkDay

From the Blogs - Posted by Employment Law News, WK WorkDay

A service provided by Wolters Kluwer Legal & Regulatory U.S. [Internet links highlighted in color]

The Wolters Kluwer Legal Scholar program, in its third year, allows current law students to compete for the chance to have their work published in a Wolters Kluwer publication. Wolters Kluwer will accept submissions through Friday, April 1, 2016

DOL fact sheet lays out joint employer responsibilities under FMLA

Posted: 02 Feb 2016 06:24 AM PST

Business owner can’t show fired employee unlawfully retaliated via zoning ordinance enforcement

By Dave Strausfeld, J.D.

Police chief gets qualified immunity despite retaliation for union employee’s criticism

By Ronald Miller, J.D.

Walmart pharmacist fired after reporting legal and safety concerns wins $31.2M verdict 
By Pamela Wolf, J.D.

ERIC comments critique EEOC’s proposed GINA wellness regulations

Posted: 01 Feb 2016 06:16 AM PST

Overzealous matchmaking by mother of CEO supports employee’s Title VII claims

By Lorene D. Park, J.D.

EEOC proposes electronic submission of compensation data in EEO-1 Report

By Cynthia L. Hackerott, J.D.

Restoration of leave credits used by employees electing to remain on the payroll while on Workers’ Compensation Leave pursuant to Civil Service Law §71

Restoration of leave credits used by employees electing to remain on the payroll while on Workers’ Compensation Leave pursuant to Civil Service Law §71

Galuski v New York State Div. of Military & Nav. Affairs, 2016 NY Slip Op 00562, Appellate Division, Third Department

Ruth A. Galuski sustained a work-related back injury on November 29, 2011and was out of work from December 5, 2011 until January 3, 2012. During this time, the Division of Military and Naval Affairs [DMNA] paid her full wages, as she had accumulated enough leave credits to cover the entirety of her absence.

Galuski also applied for workers' compensation benefits, and a Workers' Compensation Law Judge (WCLJ) issued a decision that granted her application, awarded her compensation and directed DMNA's insurance carrier to reimburse DMNA for wages it had paid to Galuski during her injury-related lost time from work.

Although DMNA’s insurance carrier reimbursed DMNA within 10 days of the WCLJ's decision, DMNA failed to restore Galuski's accrued leave credits until February 2013. 

Contending that DMNA’s restoration of Galuski’s leave credits was untimely within the meaning of Workers’ Compensation Law §25(3)(f), Galuski sought imposition of a penalty. After a hearing, the WCLJ declined to impose a penalty, and a panel of the Workers' Compensation Board upheld that decision. Galuski appealed.

The Appellate Division sustained the Board’s determination, explaining that the terms of the WCLJ's initial award provide for Galuski's direct compensation, which was paid in advance by DMNA when she received her full wages, as well as an express requirement that the carrier reimburse DMNA for the wages it had paid to claimant.

However, said the court, the award makes no mention of any obligation on DMNA’s part to timely restore Galuski's sick leave credits and as “restoration of leave time was not included in the terms of the award,” the Appellate Division concluded that the Board properly upheld the WCLJ's decision and declined to impose a penalty on DMNA.

It should be noted that certain Workers’ Compensation Leave benefits are provided to employees of the Division of Military and Naval Affairs in a negotiating unit covered by the collective bargaining agreement between the State and the Civil Service Employees Association, Inc., for the period April 2, 2011 to April 1, 2016. The relevant provision of this agreement, Article 11, Workers’ Compensation Benefits,  is posted on the Internet at: http://www.goer.ny.gov/Labor_Relations/Contracts/Current/cseadmna/2011_16_DMNA_Contract.pdf

Employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, the rules for the Classified Service provide as follows with respect to Workers’ Compensation Leave applicable the employees in a collective bargaining unit:*

4 NYCRR 21.8 (d) provides for Workers’ Compensation Leave with pay as follows:

“(d.) (1) The appointing authority upon finding that the employee is in fact disabled from the performance of his duties, may grant the employee full pay during such leave not exceeding cumulatively six months. Such full pay may be granted irrespective of the employee's accrued credits under this Chapter.

“(2) Except when on full pay status under paragraph (1) of this subdivision, the employee may draw accrued vacation, overtime and sick leave credits, subject to the provisions of this Chapter pertaining thereto.

“(3) If not drawing full pay under paragraph (1) or paragraph (2) of this subdivision, an employee may, in the discretion of the appointing authority, be allowed to draw personal leave and sick leave at half pay for which he may be eligible under this Chapter.”

Further, with respect an employee’s use of his or her leave credits while on Workers’ Compensation Leave, 4 NYCRR 21.8(g) provides for the “Restoration of leave credits” as follows:

“(g) Leave credits, including sick leave at half pay, used by an employee during a period of absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid shall be restored to him in full; provided, however, that no restoration shall be made for any absence of less than a full day. Credits so restored may not again be used for future absences attributable to the same injury. In the event that the employee dies, resigns, retires or continues absent beyond one year without further leave, cash payment for vacation and overtime credits, including any credits restored under this subdivision, shall be made in accordance with the appropriate provisions of this Chapter. In any other case, an employee restored to service after absence on leave under this section shall have one year from the date of such restoration to reduce his accrued leave credits to the limits prescribed in this Chapter.”

Attendance Rules for officers and employees designated Managerial or Confidential within the meaning of Article 14 of the Civil Service Law [the Taylor Law] serving in New York State Departments and Institutions are set out in 4 NYCRR Parts 27 through 33.

* N.B. 4 NYCRR 26.3 provides in the event there a collective bargaining agreement between the State and an employee organization the provisions these rules and the rules set out in the collective bargaining agreement shall “shall both be applicable” except that in the event “the provisions of the agreement are different from the provisions of [these] attendance rules, the provisions of the agreement shall be controlling.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00562.htm

Body piercings and dress codes

Body piercings and dress codes

From the Blogs - Posted by Employment Law News, WK WorkDay, A service provided by Wolters Kluwer Legal & Regulatory U.S.

Noting that during the 21st century, body piercings, tattoos, and long beards have come into vogue and become commonplace, and arbitrator recently sustained a grievance filed by a union member seeking to quash her employer’s written disciplinary warnings issued for her failure to remove facial piercings (Amalgamated Transit Union, Local 1070 and Indianapolis Public Transportation Corp., Nov. 18, 2015, Daniel Zeiser, Arbitrator).

In 2009, prior to being hired as a bus driver in 2013, the grievant elected to receive three micro dermal piercings in her cheek. The process involved the insertion of an anchor through a hole in the cheek created by a thin needle. The anchor included a flat base and an arm that extended through the skin, into which could be inserted a jewel or a stone.

She chose to undergo this permanent process because it reminded her of something her mother wore when she was young. Her cheek, however, rejected one of the piercings, leaving two implants and a scar where the third implant failed.

The bus company that hired her had a Dress and Personal Appearance Policy that applied to employees with regular public contact, to project a professional image to riders and to the general public. The company updated its policy in 2014, which included an accessories section that limited the size of earrings that could be worn and limited earrings to one per ear, but it said nothing about face piercings. In September of 2014, however, the employer issued a notice about winter uniforms that included a ban on all facial piercings. Following the issuance of the September ban on facial piercings, the employer ordered the employee to remove her piercings. When she failed to do so, the employer issued a written warning. She failed to remove the facial implants because they could not easily be removed like other piercings, requiring instead plastic surgery at great expense. She then filed a grievance contesting the employer’s decision.

An employer is permitted to adopt rules of personal appearance as long as the rules have a reasonable relationship to (1) the employer’s image or (2) health and safety considerations. Furthermore, employers are not permitted to regulate an employee’s personal appearance away from work, unless harm is caused to the employer’s business by that appearance.

In this case, the employer had the right to institute the dress policy. The arbitrator determined, however, that the ban on facial piercings was unreasonable because the employer could not prove any harm to its business. The employer, for example, never surveyed customers about their attitudes to the piercings, never learned whether other transit systems disciplined employees for facial piercings, and never sought to find out if piercings had an impact on funding. The arbitrator noted that many riders themselves had piercings and that no complaints had been received. As a result, he sustained the grievance and ordered that the written warning be removed from her file.

The right to a disciplinary hearing survives the individual’s resignation or retirement from the position

The right to a disciplinary hearing may survive the individual’s resignation or retirement from the position

Hughes v. County of San Bernardino, California Court of Appeals, Docket E-060294

Robert Hughes had been served with, and found guilty of, certain disciplinary charges. The penalty imposed: a 15-day suspension without pay, which resulted in a loss of about $7,000 in pay.

Hughes initiated an administrative appeal pursuant to the San Bernardino County’s civil service rules, but missed the scheduled hearing after suffering a heart attack. Hughes retired for medical reasons before the appeal hearing could be rescheduled.

The County refused to reschedule the hearing, contending that he was no longer an employee entitled to an administrative appeal. The San Bernardino Civil Service Commission ruled that it had no jurisdiction to continue with the appeal. 

Ultimately the California Court of Appeal ruled that Hughes was entitled to complete his administrative appeal as provided in the County's Personnel Rules.

In Blair v Horn* a New York Supreme Court justice considered the same issue, and came to a similar conclusion.

Clinton Blair sued the New York City Department of Correction (DOC) seeking a court order directing DOC to reinstate him to his former position and to schedule a hearing on the disciplinary charges that were pending against him at the time of his retirement after the Department had denied his request for such a hearing.

The court ruled that in this instance it was not irrational for DOC to treat the employment relationship as terminated as Blair was no longer working and remained on the payroll solely for purposes of exhausting leave that had been approved in anticipation of the termination of his employment.

While the court sustained DOC’S determination denying Blair’s request to “withdraw his retirement,” the court nevertheless ruled that Blair was entitled to a hearing on the disciplinary charges so that he may have an opportunity to contest them. In the words of the court, “His resignation during the pendency of charges does not terminate the proceeding against him.” 

In effect, these decisions provided Hughes and Blair, respectively, "name clearing hearings." As the Court of Appeals held in Matter of Stanziale, 55 NY2d 735, where it is alleged that the basis or reason for dismissal of an individual is of a "stigmatizing nature" and there has been "publication" of such a basis or reason, the individual is entitled to some due process so as to clear his or her name.**

Although in both Hughes and Blair the courts ruled that an individual was entitled to go forward with a disciplinary hearing despite resignation or retirement, the converse is also possible wherebythe employer may elect to go forward and prosecute disciplinary charges that were pending at the time an individual left its employ and  the employee's resignation or retirement will not defeat the appointing authority's ability to go forward with the disciplinary action.

In other words, a disciplinary action may survive the individual’s resignation or retirement from his or her position.

4 NYCRR 5.3(b), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service,*** permits the appointing authority to elect to disregard a resignation filed by an employee and to prosecute disciplinary charges and, in the event that such employee is found guilty of such charges and the penalty imposed is dismissal from the his or her employment, to record his or her separation as a dismissal rather than as a resignation.

The significance of this is that should the appointing authority elect to proceed with the disciplinary notwithstanding the employee’s resignation from the position and finds the individual guilty of such charges and imposes the penalty of “dismissal,” should a  prospective employer asks if the individual had ever been removed from his or her employment “for cause,” the correct answer would be “yes.” Further, such an individual may be found to be disqualified for unemployment insurance benefits.

Further, the decision in Blair suggests that a court could deem a retirement to be the equivalent of a resignation for the purposes of 4 NYCRR 5.3(b).

* Blair v Horn, 2008 NY Slip Op 32581(U)[Not selected for publication in the Official Reports], is posted on the Internet at: http://www.leagle.com/decision/In%20NYCO%2020080929167/IN%20THE%20MATTER%20OF%20BLAIR%20v.%20HORN

** For example, a provisional employee [see Browne v City of New York, 45 AD3d 590] or a probationary employee who has been terminated from his or her position [see Donato v Plainview-Old Bethpage Central School District, 96 F.3d 623,] or an individual alleging his or her retirement was a “coerced" retirement” [see Murphy v City of New York, 35 AD3d 319], among others, may be entitled to a name-clearing hearing if the reasons for his or her separation have been made public by the employer and those reasons tend to “stigmatize” the individual [see Matter of Brathwaite, 70 AD2d 810].

*** Although 4 NYCRR 5.3(b) applies only to these entities, many local civil service commissions have adopted a similar rule.

The Hughes decision is posted on the Internet at: http://law.justia.com/cases/california/court-of-appeal/2016/e060294.html

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The right to a disciplinary hearing survives the individual’s resignation or retirement from the position

The right to a disciplinary hearing may survive the individual’s resignation or retirement from the position

Hughes v. County of San Bernardino, California Court of Appeals, Docket E-060294

Robert Hughes had been served with, and found guilty of, certain disciplinary charges. The penalty imposed: a 15-day suspension without pay, which resulted in a loss of about $7,000 in pay.

Hughes initiated an administrative appeal pursuant to the San Bernardino County’s civil service rules, but missed the scheduled hearing after suffering a heart attack. Hughes retired for medical reasons before the appeal hearing could be rescheduled.

The County refused to reschedule the hearing, contending that he was no longer an employee entitled to an administrative appeal. The San Bernardino Civil Service Commission ruled that it had no jurisdiction to continue with the appeal. 

Ultimately the California Court of Appeal ruled that Hughes was entitled to complete his administrative appeal as provided in the County's Personnel Rules.

In Blair v Horn* a New York Supreme Court justice considered the same issue, and came to a similar conclusion.

Clinton Blair sued the New York City Department of Correction (DOC) seeking a court order directing DOC to reinstate him to his former position and to schedule a hearing on the disciplinary charges that were pending against him at the time of his retirement after the Department had denied his request for such a hearing.

The court ruled that in this instance it was not irrational for DOC to treat the employment relationship as terminated as Blair was no longer working and remained on the payroll solely for purposes of exhausting leave that had been approved in anticipation of the termination of his employment.

While the court sustained DOC’S determination denying Blair’s request to “withdraw his retirement,” the court nevertheless ruled that Blair was entitled to a hearing on the disciplinary charges so that he may have an opportunity to contest them. In the words of the court, “His resignation during the pendency of charges does not terminate the proceeding against him.” 

In effect, these decisions provided Hughes and Blair, respectively, "name clearing hearings." As the Court of Appeals held in Matter of Stanziale, 55 NY2d 735, where it is alleged that the basis or reason for dismissal of an individual is of a "stigmatizing nature" and there has been "publication" of such a basis or reason, the individual is entitled to some due process so as to clear his or her name.**

Although in both Hughes and Blair the courts ruled that an individual was entitled to go forward with a disciplinary hearing despite resignation or retirement, the converse is also possible wherebythe employer may elect to go forward and prosecute disciplinary charges that were pending at the time an individual left its employ and  the employee's resignation or retirement will not defeat the appointing authority's ability to go forward with the disciplinary action.

In other words, a disciplinary action may survive the individual’s resignation or retirement from his or her position.

4 NYCRR 5.3(b), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service,*** permits the appointing authority to elect to disregard a resignation filed by an employee and to prosecute disciplinary charges and, in the event that such employee is found guilty of such charges and the penalty imposed is dismissal from the his or her employment, to record his or her separation as a dismissal rather than as a resignation.

The significance of this is that should the appointing authority elect to proceed with the disciplinary notwithstanding the employee’s resignation from the position and finds the individual guilty of such charges and imposes the penalty of “dismissal,” should a  prospective employer asks if the individual had ever been removed from his or her employment “for cause,” the correct answer would be “yes.” Further, such an individual may be found to be disqualified for unemployment insurance benefits.

Further, the decision in Blair suggests that a court could deem a retirement to be the equivalent of a resignation for the purposes of 4 NYCRR 5.3(b).

* Blair v Horn, 2008 NY Slip Op 32581(U)[Not selected for publication in the Official Reports], is posted on the Internet at: http://www.leagle.com/decision/In%20NYCO%2020080929167/IN%20THE%20MATTER%20OF%20BLAIR%20v.%20HORN

** For example, a provisional employee [see Browne v City of New York, 45 AD3d 590] or a probationary employee who has been terminated from his or her position [see Donato v Plainview-Old Bethpage Central School District, 96 F.3d 623,] or an individual alleging his or her retirement was a “coerced" retirement” [see Murphy v City of New York, 35 AD3d 319], among others, may be entitled to a name-clearing hearing if the reasons for his or her separation have been made public by the employer and those reasons tend to “stigmatize” the individual [see Matter of Brathwaite, 70 AD2d 810].

*** Although 4 NYCRR 5.3(b) applies only to these entities, many local civil service commissions have adopted a similar rule.

The Hughes decision is posted on the Internet at: http://law.justia.com/cases/california/court-of-appeal/2016/e060294.html

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Name Clearing Hearings

Name Clearing Hearings

Stanziale v. Executive Dep't, Office of Gen. Servs., 55 N.Y.2d 735

Where the reason for the employee's termination from employment is claimed to be stigmatizing nature, the individual may demand a "name-clearing hearing."

Stanziale [petitioner] was a nontenured employee of the Office of General Services [OGS] at the time of his termination. As the courts held in Holbrook v State Insurance Fund, 54 N.Y.2d 892 and James v Board of Education, 37 N.Y.2d 891, where the employee is "nontenured", in the absence of individual showing that the termination was for constitutionally impermissible reasons or prohibited by statute or policies established by decisional law, the appointing authority is free to effect the termination without giving any reason for the dismissal and without holding a "pre-termination" hearing.

In Stanziale case the Court of Appeals said that its review of the record shows that these "proscriptions were not violated."

Citing Board of Regents v Roth, 408 US 564, the Court of Appeals said that even if the reason OGS elected to provide regarding the petitioner's termination could be said to have been stigmatizing, any hearing to which Stanziale might have bee entitled was accorded to him.

Finding that the challenged termination was neither arbitrary nor capricious and was made in good faith, the Court of Appeals observed that there was a rational basis for the appointing authority's rejecting the recommendation of the hearing officer and dismissing petitioner for the offense.

Accordingly, the only relief petitioner could demand was a "name-clearing hearing" in view of the court concluding that his termination was neither arbitrary nor capricious and was made in good faith. 

Termination of the employee following unsuccessful progressive disciplinary efforts did not shock the court’s "sense of fairness”

Termination of the employee following unsuccessful progressive disciplinary efforts did not shock the court’s "sense of fairness”
Phillips v York, 2016 NY Slip Op 00418, Appellate Division, Third Department

Warren County Sheriff's Office patrol officer Scott C. Phillips was served with two disciplinary charges as a result of his involvement in a preventable motor vehicle accident while on duty, an accident that allegedly resulted from his careless or negligent driving and that violated the terms of a previous disciplinary settlement agreement obligating him to exercise reasonable care in operating agency vehicles.

The  Civil Service Law §75 Hearing Officer sustained both charges and recommended that Phillips be given a letter of reprimand, a two-month suspension and a one-year term of disciplinary probation. The appointing authority adopted the findings of the Hearing Officer with respect to Phillips’ guilt, but determined that, under the circumstances, termination was the appropriate penalty. 

Phillips initiated a CPLR Article 78 proceeding challenging the appointing officer’s determination in Supreme Court, which transferred the action to the Appellate Division for resolution.

In his appeal Phillips first argued that appointing authority’s determination was arbitrary and capricious in that “it departed, without explanation, from prior disciplinary determinations imposing penalties well short of termination.” The Appellate Division said that those prior disciplinary actions “involve radically different misbehavior, a point noted by the Hearing Officer.” The court pointed out that while the appointing authority had declined to terminate employees for significant misconduct, those decisions are "factually distinguishable from this case” and did not require further explanation by appointing authority.

Phillips also contended that a September 2013 stipulation and agreement entered into by the parties following disciplinary action involving similar misconduct on the part of Phillips prohibited the appointing authority from terminating him. The court disagreed, noting that the stipulation and agreement relied upon by Phillips “did not include language prohibiting [the appointing authority] from seeking to terminate [Phillips] for future misconduct, and only stated that [the appointing authority] was free in his ‘discretion and without completion of all the formal provisions [of] . . . Civil Service Law §75 . . . [to] suspend[] [Phillips] without pay for a period not to exceed two (2) months’ if the terms of his probation were violated.” Significantly, the court said that had the parties "intended the clause to have a broader meaning" and preclude the appointing authority from seeking a harsher penalty if he employed the procedures set forth by Civil Service Law §75, it was incumbent upon them to "have specifically so stated."

Phillips also challenged the penalty of termination imposed by the appointing authority, claiming that such a penalty constituted an abuse of discretion because "it is so disproportionate to the offense as to shock [the court’s] sense of fairness" – a violation of the so-called the Pell Doctrine [Pell v Board of Education, 34 NY2d 222].

The Appellate Division was not persuaded by this claim, noting that “From March 2011 to December 2013, [Phillips] was involved in several preventable accidents while operating patrol vehicles. Despite progressive discipline imposed as a result of those accidents, it is evident that [the appointing authority] appropriately found from this history that [Phillips] would pose a risk to persons and property if he continued to hold his position as a patrol officer and, thus, we cannot say that the penalty of termination shocks our sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00418.htm

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