An individual wishing to withdraw or rescind his or her resignation after delivery to the appointing authority must fully comply with all relevant rules and regulations

An individual wishing to withdraw or rescind his or her resignation after delivery to the appointing authority must fully comply with all relevant rules and regulations

Vaccaro v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2016 NY Slip Op 04116, Appellate Division, First Department

Supreme Court granted Gaetano Vaccaro’s Article 78 petition seeking [1] the annulment of the Board of Education of the City School District of the City of New York’s [Board of Education] determination discontinuing Vaccaro’s probationary employment and [2] a declaration that Vaccaro was a tenured teacher at the time his employment as a probationary employment was terminated. Supreme Court also denied the Board of Education’s cross motion to dismiss Vaccaro’s petition.

The Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and dismissed the Article 78 proceeding brought by Vaccaro.

Citing Springer v Board of Education of the City School District of the City of New York, 121 AD3d 473, affirmed 27 NY3d 102*, the Appellate Division explained that Vaccaro had not complied with the provisions set out in New York City Department of Education's Chancellor's Regulations C-205(28) and C-205(29), which provisions govern with respect to the withdrawal of a resignation by an individual and the restoration of the tenure previously enjoyed by that individual.

As noted in NYPPL’s summary of the Springer decision, while Springer’s position was in the Unclassified Service,** in the event "a permanent employee in a position in the Classified Service*** of the State as the employer resigns from his or her position and subsequently wishes to withdraw his or her resignation he or she must obtain the approval of the appointing authority to do so. Rules for the Classified Service promulgated by the New York State Civil Service Commission, 4 NYCRR 5.3(c) provide that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.

“Further, 4 NYCRR 5.4, Reinstatement following resignation provides, in pertinent part, that a former permanent State employee who has resigned from his or her position may be reinstated without examination within one year of the effective date of the resignation in the position from which he or she resigned, if then vacant. This rule, then further provides that “In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his [or her] former position more than one year after resignation.

“Many local Civil Service Commissions have adopted rules similar to 4 NYCRR 5.4.”

* The Springer decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_02553.htm

** See, generally, Civil Service Law §35.

*** See, generally, Civil Service Law §§40-45

The Vaccaro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04116.htm

Imposing a "disciplinary probation period" as part of the penalty or settlement of a disciplinary action

Imposing a "disciplinary probation period" as part of the penalty or settlement of a disciplinary action

Woods v State Univ. of N.Y., 2016 NY Slip Op 04084, Appellate Division, Third Department

The genesis of Woods v State University of New York [SUNY], was Norman Woods being served with a notice of discipline issued in accordance with the terms of the collective bargaining agreement [CBA] negotiated by State and Woods’ collective bargaining organization, the Correctional Officers and Police Benevolent Association, Inc. [NYSCOPBA]. In October 2013 the Disciplinary Arbitrator issued an award in which he found Woods guilty of four of the five charges brought against him and imposed a penalty of a fine and, as relevant to this appeal, "a one (1) year probation period."

In June 2014 Woods’ supervisor issued a negative "final" probationary evaluation and on the same day SUNY's director of human resources wrote to Woods to advise him that his "disciplinary probationary appointment" at SUNY was terminated.

In response to NYSCOPBA filing a grievance challenging Woods’ termination from his “disciplinary probation, SUNY's director of employee relations wrote to NYSCOPBA to advise it that Woods had not been disciplined and "returned" the grievance to NYSCOPBA. NYSCOPBA initiated a proceeding seeking to compel arbitration pursuant to CPLR §7503, or, in the alternative, to vacate and annul the termination pursuant to CPLR Article 78. Supreme Court converted the proceeding to one seeking to confirm the award pursuant to CPLR §7511 and directed the parties to seek clarification of the October 2013 arbitration award.

The Appellate Division reversed the Supreme Court ruling. The court explained while public policy generally favors the resolution of labor disputes through arbitration, not  every dispute is arbitrable. When considering a petition to compel arbitration courts make "two distinct inquiries:" [1] is arbitration of the issue is authorized by the Taylor Law and permitted as a matter of public policy, and, [2] did the parties agreed in the CBA to submit the issue to arbitration.

Although SUNY had contended that Woods had waived the right to pursue arbitration should he be terminated during his disciplinary probationary period, the Appellate Division, conceding that such right may be waived, held that Woods was not a party to a "last chance agreement" reciting a clear and unequivocal waiver of negotiated arbitration procedure set out in the CBA.

Although SUNY contended that “by virtue of the October 2013 arbitration award, [1] Woods was a probationary employee, and [2] the parties did not agree to arbitrate issues regarding the termination of probationary employees,” the Appellate Division ruled that the issue before it was to determine whether there is a "reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.*

The majority of the Appellate Division held that the CBA provides that "[d]iscipline shall be imposed upon employees otherwise subject to the provisions of §§ 75 and 76 of the Civil Service Law only pursuant to [the contract disciplinary grievance procedure] in lieu of the procedure and remedies prescribed by such sections of the Civil Service Law …." Further, said the majority, it was “mindful that one of the referenced statutes provides that certain employees in the classified civil service who have completed a probationary period of employment may not be disciplined "except for incompetency or misconduct shown after a hearing upon stated charges."

The majority said that it did not find that the cited provision of the CBA “unambiguously excludes" Woods, as an individual serving a disciplinary probationary period, from its coverage and it was for an arbitrator to interpret and apply the CBA, and the court did not have the authority to consider the merits of SUNY's argument.”

Holding that the CBA provision is ambiguous, the majority said that an arbitrator must decide whether it governs Woods' summary dismissal from service during his disciplinary probationary status and Supreme Court should have granted NYSCOPBA's petition seeking to compel arbitration.

Although this was apparently not the situation in Woods v SUNY, disciplinary settlement agreements providing for a “disciplinary probation” typically set out the reason permitting the employee to be summarily terminated from his or her position during his or her “disciplinary probation” period.

Taylor v Cass, 122 A.D.2d 885, illustrates impact of a settlement agreement that included a disciplinary probation component whereby the appointing authority could summarily terminate the employee without any hearing if, in the opinion of his superior, "his job performance was adversely affected by his intoxication on the job during the next six months.” Taylor was terminated during his disciplinary probationary period without a hearing for “failing to give a fair day’s work and sleeping during scheduled working hours.” However, there was no allegation that he had been intoxicated on the job as a reason for his dismissal as a disciplinary probation employee.

Taylor sued, challenging his dismissal and won reinstatement with back salary. The Appellate Division said that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

In contrast, in Outley v Upstate Med. Univ., 60 AD3d 1398 [motion for leave to appeal denied,13 NY3d 708], the Appellate Division sustained the summary termination of Joanne Outley, an employee at SUNY’s Upstate Medical Center [UMC], after it was demonstrated that she had violated the terms of her “disciplinary probation.” UMC and Outley entered into a disciplinary settlement agreement that placed her on "disciplinary probation" for a specified period of time and prohibited her taking any unauthorized absences.

The Appellate Division dismissed Outley’s challenge to her termination explaining that that the record established that Outley had violated the settlement agreement by being on an unauthorized absence during her disciplinary probation period, thus providing UMC with a legally sufficient basis for summarily terminating her employment that was neither arbitrary nor capricious. 

Further, said the court, Outley failed to establish that she "was dismissed in bad faith or for an improper or impermissible reason."

* The decision notes that Judge Rose dissented from the majority opinion.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04084.htm

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Applicant for performance of duty disability retirement benefits must show that his or her disability was the result of an act of an inmate

Applicant for performance of duty disability retirement benefits must show that his or her disability was the result of an act of an inmate
Traxler v DiNapoli, 2016 NY Slip Op 03949, Appellate Division, Third Department

Sheila Traxler, a correction officer, applied for performance of duty disability retirement benefits alleging that she was permanently incapacitated due to work-related injuries sustained when a self-closing gate struck her after an inmate accidentally let go of it while Traxler was standing in the doorway.

Traxler’s application was initially denied by the Retirement System and she requested a hearing and redetermination. Following the hearing, the Hearing Officer sustained the denial of Traxler’s application for duty disability retirement holding that Traxler "failed to establish that her injuries were the result of an act of an inmate." The Comptroller accepted the findings and conclusions of the Hearing Officer and denied Traxler’s appeal. Traxler appealed the Comptroller's decision.

Citing Retirement and Social Security Law §607-c[a],* the Appellate Division annulled the Comptroller’s decision. The court explained that Traxler bore the burden of demonstrating that the incident in which she sustained her injuries was "the natural and proximate result of any act of any inmate." All that is required, said the court, is that the applicant for duty disability retirement show that his or her injuries “were caused by direct interaction with an inmate."

While Traxler did not believe that the inmate intended to injure her, she was injured as the result of the inmate disobeying Traxler’s instruction to remain where she was standing. Under these circumstances, said the court, there is no evidentiary basis in the record to conclude that [Traxler’s] injuries did not occur contemporaneously with, and flowed directly, naturally and proximately from, the inmate's’ disobedient and affirmative actions.

Accordingly, the Appellate Division ruled that Traxler’s injury was a natural and proximate result of an act of an inmate and remitted the matter to the Retirement System “for further proceedings on the issue of the permanency of [Traxler’s] alleged disability.”

In contrast to the ruling in Traxler, in Palmateer v DiNapoli, 117 AD3d 1228 [motion for leave to appeal denied, 24 NY3d 901], the Appellate Division rejected a correction officer’s appeal of the denial of his application for duty disability retirement, holding that “[a]ny connection between his injuries and the inmate conduct here is too attenuated to form a basis for an award of performance of duty disability retirement benefits.”

Lawrence Palmateer, a correction officer, had applied for duty disability retirement benefits pursuant to Retirement and Social Security Law §507-b.** The record indicated that Palmateer was seated at a desk when he heard a commotion in the shower room that he believed to be an altercation between inmates. Getting up from his desk “his right knee gave out, causing him to fall.”

Although it was uncontroverted that Palmateer was permanently incapacitated from performing the duties of a correction officer, the Appellate Division said that it did not agree with Palmateer’s contention that the injuries he suffered “responding to a potential emergency involving inmates” were the natural and proximate result of an act of an inmate.

* §607-c[a], Performance of duty disability benefit, provides, in pertinent part, that “Any sheriff, deputy sheriff, undersheriff or correction officer as defined in subdivision a of section sixty-three-b of this chapter, and who are employed in a county which makes an election pursuant to subdivision d of such section sixty-three-b, who becomes physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties by, or as the natural and proximate result of any act of any inmate or any person confined in an institution under the jurisdiction of such county, shall be paid a performance of duty disability retirement allowance equal to that which is provided in section sixty-three of this chapter, subject to the provisions of section sixty-four of this chapter.”

** §507-c, Performance of duty disability retirement, applies to the uniformed personnel serving in institutions under the jurisdiction of the New York City Department of Correction.

The Traxler decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03949.htm

ThePalmateer decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03322.htm

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The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Inability to satisfactorily perform the duties of the position due to an alleged disability

Inability to satisfactorily perform the duties of the position due to an alleged disability

OATH Index No. 858/16

The appointing authority alleged that a Computer Associate was unfit to perform his job after employer proved that he had difficulty keeping up with technological changes and was confrontational when interacting with co-workers and supervisors. Designated “a disability proceeding” it was submitted to the Office of Administrative Trials and Hearings pursuant to §72 of the Civil Service Law [CSL].

Finding that the employer had demonstrated that employee is currently unfit for the duties of his job,* Oath Administrative Law Judge Alessandra F. Zorgniotti recommended that the employee be placed on an Involuntary Leave of Absence, explaining that in order to place an employee on an involuntary medical leave pursuant to CSL §72, the employer must prove by a preponderance of the evidence that: (i) employee suffers from a disability, (ii) he of she is unable to competently perform his or her job duties, and (iii) his or her inability to perform is caused by a disability.

ALJ Zorgniotti also observed that: “The focus of the §72 proceeding is on the employee’s current fitness and ability to perform his or her job duties, not on his or her past condition or work performance” and that “[p]ast performance is relevant only to the extent that it is probative of [the employee’s] present condition and future conduct.”

Noting that “[a]n essential part of fitness to work in any job assignment is an ability to work with and be supervised by others, without being disruptive or abusive”, Judge Zorgniotti said earlier OATH decisions indicated that a “finding of unfitness is supported where an employee denies the existence of a disability. or refuses to treat it, [and there is competent medical evidence to the contrary] thereby creating a greater risk of future recurrence of the disability.” 

* Judge Alessandra F. Zorgniotti noted that employee’s behavior continued to be disruptive even after supervisors had made efforts to simplify his job, action that could be deemed to an effort to provide a reasonable accommodation of the employee's disability.

The appointing authority adopted the ALJ’s findings and recommendation.  
  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-858.pdf

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The Disability Benefits E-book:- This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Conducting disciplinary hearings in absentia

Conducting disciplinary hearings in absentia

OATH Index No. 1046/16

Although rare, an employee upon whom disciplinary charges have been served may refuses to participate in the scheduled disciplinary hearing. If the appointing authority goes forward with the disciplinary hearing notwithstanding the employee’s failure to participate, has the employee been denied due process?

New York courts have held that the disciplinary hearing may proceed and the employee tried in absentia provided, however, the appointing authority has complied with a number of procedural steps, including the following:

1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing.

2. That a diligent effort was made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee.

3. A formal hearing must be conducted and the employer is required to introduce evidence proving its charges to the hearing officer.

4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee.

5. The employee must be advised of the appointing authority’s determination and of the employee's right of appeal if he or she has been found guilty of one or more of the charges.

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066,  “due process does not require that [the charged employee] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.*

OATH Administrative Law Judge John B. Spooner conducted a Civil Service Law §75 disciplinary hearing with the employee in absentia when the appointing authority appeared at the scheduled time and place but the employee declined to do so. Judge Spooner characterized the hearing as being in the “form of an inquest” and found that the appointing authority had [1] properly served the employee with the disciplinary charges and the notice of the hearing, and [2] had then produced records and the provided testimony by the employee’s supervisors supporting the charges of the employee’s alleged misconduct at the "inquest." The ALJ found that that the appointing authority had proven the employee was guilty of the charges and recommended that the employee be terminated from service. 

This is another example demonstrating that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing.

Holding a disciplinary action in absentia, however, is a two-way street. Case law demonstrates that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority and make a final, binding determination. 

In Hall v Environmental Conservation, 235 A.D.2d 757, the employer boycotted the disciplinary arbitration because it believed that Hall was not entitled to the disciplinary arbitration. The arbitrator ruled in favor of the employee and directed Environment Conservation to reinstate the employee to his position with back pay. 

Environmental Conservation [DEC] sought a court order vacating the arbitration award, contending that its termination of Hall was not subject to being challenged pursuant to the “contract disciplinary procedure” because the State Department of Civil Service had disqualified Hall for employment. DEC argued that as Hall’s appointment had been voided by the Department of Civil Service he could not claim any rights under Section 75 of the Civil Service Law or the collective bargaining agreement.**

A Supreme Court judge granted the union’s motion to confirm that portion of the award providing for the payment of certain back pay, holding that the disciplinary proceeding was not rendered moot by the Civil Service Department’s action but declined to confirm that part of the award that directed DEC reinstate Hall to his former position. The Appellate Division sustained the lower court’s ruling.

* Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.

** Pursuant to Civil Service Law Section 76.4, many Taylor Law collective bargaining agreements provide that a permanent employee in the classified service may challenge a disciplinary action in accordance with the terms set out in a "contract disciplinary procedure" that is operative in lieu of disciplinary action pursuant to a statutory disciplinary procedure [see Antinore v State, 40 NY2d 6].

Judge Spooner’s decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1046.pdf

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Determining the impact of performing light, limited or restricted duty on applications for disability retirement benefits

Determining the impact of performing light, limited or restricted duty on an application for disability retirement benefits

Koenig v DiNapoli, 2016 NY Slip Op 03942, Appellate Division, Third Department

2 NYCRR 364.3 addresses situations in which a member of the New York Stateand Local Police and Fire Retirement System [SLPFRS] has been assigned to light, limited or restricted duty applies for disability retirement benefits.

If the SLPFRS member has been assigned to light, limited or restricted duties for less than two years prior to the date application for disability retirement benefits was filed with the Comptroller and has not performed at least 100 hours of paid overtime in any 12-month period within such two-year period, SLPFRS is to “render its determination on the issue of permanent incapacity on the basis of the duties and job requirements of such previous full duty assignment.”

In contrast, if the SLPFRS member has been continuously assigned to light, limited or restricted duties for at least two years prior to the date application for disability retirement benefits SLPFRS  is to render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.

If, however, the SLPFRS member has been continuously assigned to light, limited or restricted duties for at least one year prior to the date application for disability retirement benefits was filed performed at least 100 hours of paid overtime while on light, limited or restricted duty assignment during any 12-month period within the two-year period prior to the filing of the application for disability retirement, SLPFRS is to base its determination on the issue of permanent incapacity “on the basis of such light, limited or restricted duty assignment.”

In July 2007, Daniel G. Koenig, a police officer, was injured when a bullet fragment from another police officer's gunshot ricocheted off a target at the firing range and struck petitioner in the leg. Koenig returned to work in December 2007 and placed on light duty assignment. In January 2009, Koenig filed an application for accidental disability retirement benefits.

The New York State and Local Police and Fire Retirement System [SLPFRS] assessed Koenig's disability application on whether he was incapacitated from the performance of the duties assigned to light duty work in accordance with 2 NYCRR 364.3(c).*

The Comptroller, however, accepted the findings and conclusions of the Hearing Officer, concluding that whether Koenig was permanently disabled from the performance of his duties should be evaluated on the basis of his light duty assignment and thereafter denied his application for accidental disability retirement benefits. The Comptroller, in effect, held that Koenig was not disabled from continuing to perform his light duty assignment.

Koenig filed an Article 78 petition challenging the Comptroller’s determination, contending that as the hearing had already been commenced under the full duty performance standard, the provisions of 2 NYCRR 364.3(c) should not control. He also claimed that he had not worked 100 hours or more of overtime.

The Appellate Division held that Koenig's contention that it was error, following the commencement of the hearing, to change the standard upon which to evaluate his disability retirement application from full duty to light duty performance, particularly given that he already had presented medical testimony based upon his full duty assignment, “was without merit.” The court said that evidence in the record established that Koenig continuously performed light duty assignment for a year following his return to work and also performed at least 100 hours of paid overtime during a 12-month period prior to filing his application for disability retirement benefits. Accordingly, said the court, 2 NYCRR 364.3(c) requires that the determination on the issue of permanent incapacity be evaluated on the basis of the light duty assignment.

Although Koenig sought to deduct mandatory overtime for medical evaluations or court appearances and contractual travel overtime from his total hours of overtime, the Appellate Division said that it found “nothing irrational, unreasonable, arbitrary or capricious in the Comptroller's interpretation that, under the circumstances herein, such overtime was reasonably anticipated by the regulation and should not be excluded from the total overtime hours reported.”**  Further, explained the court citing Bombace v Nitido, 117 AD3d 1375, “[t]he Comptroller is vested with . . . the duty to correct errors and cannot be estopped to create rights to retirement benefits to which there is no entitlement.”

Although Koenig was given the opportunities to recall or have his medical expert submit an affidavit as to his ability to perform light duty work and also was informed that appropriate time would be given in order for him to present any additional evidence or witnesses, he declined to do so.

The Appellate Division ruled that as Koenig presented no evidence regarding his inability to perform light duty work, the Comptroller's denial of his application for accidental disability retirement benefits “will not be disturbed.”

* 2 NYCRR 364.3(c) provides the member has been continuously assigned to light, limited or restricted duties for at least one year prior to the date application for disability retirement benefits was filed with the Comptroller has performed at least 100 hours of paid overtime while on light, limited or restricted duty assignment during any 12-month period within the two-year period prior to the filing of the application for disability retirement, SLPFRS “shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.”

**The Appellate Division observed that even under his own assessment, Koenig completed more than 90 hours of voluntary overtime during the relevant 12-month period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03942.htm

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The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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