From the LawBlogs -- for the week ending July 2, 2016

From the LawBlogs -- for the week ending July 2, 2016

Internet links highlighted in color 

Employment Law Daily Blog 
Case summaries published in WK's Employment Law News 

Justices leave public-sector agency fee battle for another day

by Pamela Wolf, J.D.

Whether CDL was essential function of diabetic’s job properly put to jury

by Ronald Miller, J.D.

FMLA notice’s failure to include job restoration rights might be interference if employee prejudiced

by Kathleen Kapusta, J.D.

Texas has standing to challenge EEOC Guidance on criminal background checks as final agency action

by Kathleen Kapusta, J.D.

PA’s pre-leave failure to stay up-to-date on patient charts suggests firing unrelated to FMLA

by Brandi O. Brown, J.D. 

The five most popular NYPPL LawBlog Postings

Health insurance company’s claim for reimbursement...

A probationary employee may not be dismissed from ...

Where the collective bargaining agreement so provi...

Essentials of the "Pickering Balancing Test”

Guide to regulatory enforcement publ

Summaries of articles published in the Fire, Police and Corrections Personnel Reporter 

Posted by AELE  

Disciplinary Interviews and Compelled Reports -- Garrity Warnings - Despite the protections in Garrity, a state employee can waive those rights after he is fired and allow his prior compelled statements to be used by the federal government in a criminal investigation concerning the death and beating of an inmate, provided the waiver was voluntary, knowing, and intelligent. Further, in this case, the statements made by a corrections officer were not compelled because he did not show that he subjectively believed that his statements were compelled on threat of job loss, and that this belief was "objectively reasonable." But even if they were compelled, he adequately waived his Garrityprotections, United States v. Smith, #13-15476, 2016 U.S. App. Lexis 7762 (11th Cir.). 

Disciplinary Procedures - In General - A female tenth grader took a pie to firefighters. One male firefighter gave her a tour of the station and took a picture of her next to a fire engine. He got her email address to send her the picture and subsequently engaged in a risqué exchange of emails. After the girl's father complained, the firefighter was assigned to a training center where he allegedly touched a female co-worker in an unwelcome manner and made "inappropriate" remarks about their private lives. After an investigation, he was fired. In reviewing the disciplinary action, the trial court did not err in finding that the email exchange, if with a willing unmarried adult, would not violate any existing policy, and it was not alleged in any charge that the firefighter knew the girl was a minor, but the question could be further reconsidered on remand. The trial court, which set aside the termination, did err in failing to consider interview transcripts regarding the firefighter's behavior towards the female co-worker. Seibert v. City of San Jose, #H040268, 2016 Cal. App. Lexis 435. 

Fair Labor Standards Act - Overtime in General - Current and former police officers claimed that the city violated the Fair Labor Standards Act (FLSA), 29 U.S.C. 201-19 by failing to include payments of unused portions of their benefit allowances when calculating their regular rate of pay, resulting in lower overtime pay. The federal appeals court agreed with this claim as the money paid for unused benefits was payment for work. The plaintiffs were entitled to liquidated damages because the city failed to show that it attempted in good faith to comply with the law. Flores v. City of San Gabriel, #14-56421, 2016 U.S. App. Lexis 10018 (8th Cir.). 

Firearms Related - Editor's Case Alert - Four retired correctional officers claimed that the District of Columbia improperly deprived them of their federal right to carry a concealed weapon under the Law Enforcement Officers Safety Act (LEOSA), 18 U.S.C. 926C. They claimed that they met the statutory requirements but that they were unable to obtain firearms training because the District refused to certify that, as corrections officers, they had the power to arrest, specifically to arrest parole violators. The federal appeals court found that the complaint sufficiently alleged that they had been unlawfully deprived of a concrete individual right designed to benefit them, which could be remedied under 42 U.S.C. Sec. 1983. Duberry v. District of Columbia, #15-7062, 2016 U.S. App. Lexis 10096 (D.C. Cir.). 

First Amendment Related - A federal employee failed to show that she was not promoted because of comments in her performance evaluation when that evaluation was not shown to be actually used in the promotion process. Accordingly, even if comments in the evaluation referred to her protected First Amendment speech (being quoted in a newspaper article about race discrimination within the agency employing her), she could not show that she was not promoted because she exercised her First Amendment rights. Performance ratings that have a negative impact on promotion potential do not constitute an adverse employment action unless the rating actually led to the denial of the promotion. Wilson v. Miller, #15-1415, 2016 U.S. App. Lexis 7401, 41 I.E.R. Cas. (BNA) 469 (8th Cir.). 

Handicap/Abilities Discrimination – Disability - A courthouse employee who assisted pro se litigators claimed that before she left to take a better job she was discriminated against because of her black race and her disability of chronic fatigue syndrome. Upholding summary judgment for the defendants, the court noted that the county was her employer and that all alleged discriminatory acts had been committed by state employees, and could not impose liability on her employer. Further, the two specific requests she had made on account of disability--seeking time off--had both been granted. Wells v. Winnebago County, #15-1805, 2016 U.S. App. Lexis 7647, 129 Fair Empl. Prac. Cas. (BNA) (7th Cir.). 

Handicap/Abilities Discrimination -- Reasonable Accommodation [Editor's Case Alert] - A firefighter injured his back during a training exercise. A functional capacity evaluation limited his lifting capabilities. After two years on paid leave, he received a workers' comp award saying the limit was permanent. He retired, but argued that his retirement was a constructive discharge in violation of the Americans with Disabilities Act of 1990 (ADA), with him forced to choose between retirement and termination. Rejecting the claim, the court said that "Even if the City regarded Adair as having an impairment, Adair cannot show that he was qualified to meet the physical demands required of firefighters or that the City could reasonably accommodate his lifting restrictions." Adair v. City of Muskogee, #15-7067, 2016 U.S. App. Lexis 9636 (10th Cir.). 

Political Activity - Patronage Employment - The chief deputy clerk in a courthouse asserted that her firing constituted unlawful retaliation for political affiliations as well as gender discrimination. Rejecting the political affiliation claim, the appeals court found it was permissible to fire her on that basis as she was in a job where it was appropriate to require personal and political loyalty. She also failed to provide any evidence that the reasons given for her termination were a pretext for sex discrimination. DePriest v. Milligan, #15-1365, 2016 U.S. App. Lexis 9630 (8th Cir.). 

Retaliatory Personnel Action - An employee of a state agency claimed that she suffered unlawful retaliation for opposing an employment practice prohibited by Title VII and other employment discrimination laws. The conduct she opposed - the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims - was not a “practice made an unlawful employment practice” by Title VII. Cooper v. N.Y. State Dep’t of Labor, #15-3392, 2016 U.S. App. Lexis 7588, 100 Empl. Prac. Dec. (CCH) P45543, 129 Fair Empl. Prac. Cas. (BNA) 44 (2nd Cir.). 

Whistleblower Protection - An employee of the Centers for Disease Control and Prevention claimed that agency officials violated the whistleblower protections of 5 U.S.C. 2302(b)(8)(A) by retaliating against him for disclosures about agency practices, including that the Pocket PCs were outdated, had bad batteries, lost data, and presented data-entry problems. Because of this he was allegedly not invited to certain meetings, and discouraged from participating in certain projects to which he was assigned. Various supervisors also allegedly treated and evaluated him poorly and placed him on a Performance Action Plan. A federal appeals court reversed the dismissal of the claim, finding that the employee had adequately alleged that at least one of his supervisors knew of the disclosure at issue. Cahill v. Merit Sys. Protection Bd., #15-3152, 2016 U.S. App. Lexis 8554 (Fed. Cir.).

Summaries of government, administrative and related law decisions posted by Justia

People ex rel. Feuer v. Progressive Horizon
Business Law, Government Administrative Law
California Court of Appeal

McIntyre v. El Paso Indep. Sch. Dist.
Constitutional Law, Education Law, Government & Administrative Law
Supreme Court of Texas

Tex. Dep’t of Ins., Div. of Workers’ Comp. v. Jones
Labor and Employment Law, Government and Administrative Law, Insurance Law
Supreme Court of Texas

McDonnell v. United States
Criminal Law, Government and Administrative Law, White Collar Crime
U.S. Supreme Court

State of Texas v. EEOC
Civil Procedure, Government and Administrative Law
U.S. Court of Appeals for the Fifth Circuit

Open Door Ministries v. Lipschuetz
Government and Administrative Law, Injury Law, Real Estate and Property Law, Zoning, Planning and Land Use
Colorado Supreme Court

Appeal of Carlos Marti
Labor and Employment Law, Government and Administrative Law, Injury Law
New Hampshire Supreme Court

Appeal of Thomas Phillips
Labor and Employment Law, Government and Administrative Law
New Hampshire Supreme Court

Signal Aviation Services, Inc. v. City of Lebanon
Aviation, Government and Administrative Law, Tax Law
New Hampshire Supreme Court

Indian Spring Land Co. v. Inland Wetlands Watercourses Agency
Government and Administrative Law, Real Estate and Property Law

Connecticut Supreme Court

Laut v. City of Arnold
Government and Administrative Law, Legal Ethics
Supreme Court of Missouri

Mo. Real Estate Appraisers Comm'n v. Funk
Government and Administrative Law, Legal Ethics
Supreme Court of Missouri

Malam v. State, Dep’t of Corr.
Labor and Employment Law, Government and Administrative Law
Supreme Court of Missouri

Warner v. Idaho Transportation Dept
Criminal Law, Government and Administrative Law
Idaho Supreme Court - Civil

Vannoy v. Federal Reserve Bank
Civil Rights, Constitutional Law, Government and Administrative Law
U.S. Court of Appeals for the Fourth Circuit

Bayala v. DHS
Government and Administrative Law
U.S. Court of Appeals for the District of Columbia Circuit

National Fed. of the Blind v. DOT
Civil Procedure, Government and Administrative Law
U.S. Court of Appeals for the District of Columbia Circuit

Lake Hendricks Improvement Ass’n v. Brookings County Planning Zoning Comm’n
Government and; Administrative Law, Zoning, Planning and Land Use
South DakotaSupreme Court

Dept. of Rev. v. River's Edge Investments, LLC
Government and Administrative Law, Tax Law
Oregon Supreme Court

Oakmont, LLC v. Dept. of Rev.
Government and Administrative Law, Real Estate and Property Law, Tax Law
Oregon Supreme Court

City of Richmond v. Va. Elec. and Power Co.
Government and Administrative Law, Tax Law
Supreme Court of Virginia

Bay Area Citizens v. Ass'n Bay Area Gov'ts
Environmental Law, Government and Administrative Law

Jangula v. N.D. Dep't of Transportation
Criminal Law, Government Administrative Law
North Dakota Supreme Court

Solers, Inc. v. IRS
Government and Administrative Law
U.S. Court of Appeals for the Fourth Circuit  

Zajac v. Traill County Water Resource District
Civil Procedure, Government and Administrative Law, Real Estate and Property Law
North Dakota Supreme Court

Independence Day Proclamation

Independence Day Proclamation

Source: New York State Executive Chamber, Andrew M. Cuomo, Governor

New York State Governor Andrew M. Cuomo, noting that on “this day 240 years ago, the United States of America was founded on the principles of equality, liberty and the right of self-governance,” has issued an Independence Day Proclamation  commemorating this critical event in the history of the United States of America.

This Proclamation is posted on the Internet at:  https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/IndependenceDay2016.pdf?elqTrackId=eb84fca5a24243b186999780fc770de6&elq=91e8e168ba414cdcab1f2fad71436fe2&elqaid=137&elqat=1&elqCampaignId=41

Selected reports issued by the Office of the State Comptroller during the week ending July 2, 2016

Selected reports issued by the Office of the State Comptroller during the week ending July 2, 2016

Source: Office of the State Comptroller

Click on text highlighted in color to access the entire report 

Former Alexandria Town Clerk Pleads Guilty in Theft

Former Alexandria Town Clerk Ellen Peck pleaded guilty in Jefferson County Court to stealing $26,285 in public funds. Peck pocketed cash paid by residents for fines, fees and surcharges, according to State Comptroller Thomas P. DiNapoli.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Individuals can report allegations of fraud involving public funds by calling the toll-free Fraud Hotline at 1-888-672-4555, by transmitting an e-mail to investigations@osc.state.ny.us, by filing a complaint online athttp://osc.state.ny.us/investigations/complaintform2.htm or by mailing a complaint to Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

CDTA Overtime Expenses and Ridership Growing

The Capital District Transportation Authority’s reported overtime payments accounted for 20 percent of the authority’s total employee compensation in the 2015 fiscal year, more than twice the proportion of other upstate regional transit agencies, amid steady ridership growth in recent years, according to a reportreleased by State Comptroller Thomas P. DiNapoli.

Guide to regulatory enforcement published by McGraw-Hill Education

Guide to regulatory enforcement published by McGraw-Hill Education

Source: Marissa Madill, Smith Publicity, Inc.

In their recently published book, The New Era of Regulatory Enforcement: A Comprehensive Guide for Raising the Bar to Manage Risk, authors Richard H. Girgenti, J.D., [National and Americas Leader for KPMG LLP’s Forensic Advisory Services], and Dr. Timothy P. Hedley, [KPMG’s Global Lead for Fraud Risk Management Services], provide insights into challenges organizations may face in conducting business in a rapidly changing regulatory environment. 

Noting that "In today’s global and digital world, the increasingly complex regulatory and business landscape has created unprecedented challenges and risks for businesses in all industries,” Girgenti and Hedley, supported by KPMG professionals with varied areas of regulatory and enforcement knowledge, explore government policies, strategies and tactics driving enforcement activity, and the most effective approaches for identifying, detecting, avoiding and responding to enterprise and industry risks. 

The New Era of Regulatory Enforcement provides clear guidance on what organizations need to do to mitigate risks, as well as insight into:

Public policies driving increased enforcement activity;

Government expectations for organizational compliance and integrity;

Tools and techniques deployed by the government to identify, investigate and ensure organizational compliance; and

Steps prudent organizations must take to prevent, detect and, as necessary, respond to regulatory enforcement risks.

Girgenti and Hedley also co-authored Managing the Risk of Fraud and Misconduct: Meeting the Challenges of a Global, Regulated, and Digital Environment [McGraw-Hill, 2011]. 

The New Era of Regulatory Enforcement is available in both hardcover and Kindle versions at  bookstores and through the Internet.

Recent decisions by Administrative Law Judges of the NYC Office of Administrative Trials and Hearings

Recent decisions by Administrative Law Judges of the NYC Office of Administrative Trials and Hearings

Human Resources Administration v Smart, OATH Index No. 1325/16

NYC Dept. of Transportation v Harris, OATH Index No. 1531/16 

Matter of Smart: In the Smart case, OATH Administrative Law Judge Kevin F. Casey found that a job opportunity specialist, Averyl Smart, guilty of charges of [1] speaking on her cell phone while a client was waiting, [2] refusing to set up her work voicemail, and [3] burning the edges of a disciplinary memorandum. Judge Casey, however, dismissed the allegation charging that Smith had made disrespectful comments to a supervisor.

Finding that was Smart guilty of three of the four charges alleged against her, the ALJ recommended that a 15-day suspension without pay be imposed as her penalty.

The decision is posted on the Internet at: 

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1325.pdf

Matter of Harris: The New York Department of Transportation alleged that Maurice Harris, a highway repairer, intentionally pushed and cursed his supervisor.

Administrative Law Judge Alessandra F. Zorgniotti found that Harris had intentionally pushed his supervisor but had been provoked by the supervisor but that the Department of Transportation had filed to prove that Harris had cursed him.

Considering Harris’ 18 years of service with the Department and his a minor disciplinary record – in 2006 he was given a written reprimand for failing to notify his work location that he was unable to report to work and in 2012 he was suspended for five days for using in appropriate language towards a supervisor -- ALJ Zorgniotti recommended a ten-day suspension without pay.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1531.pdf

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions and the termination of permanent, provisional, temporary and term state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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Determining whether a collective bargaining agreement provides for the arbitration of an alleged violation of the agreement

Determining whether a collective bargaining agreement provides for the arbitration of an alleged violation of the agreement

In the Matter of Wilson Cent. Sch. Dist. (Wilson Teachers' Assn.), 2016 NY Slip Op 04866, Appellate Division, Fourth Department

The Wilson Central School District appealed Supreme Court’s decision denying its CPLR Article 75 petition to stay the arbitration of a grievance concerning the transfer of a physical education teacher from its high school to its elementary school and granted the Wilson Teachers’ Association’s cross petition to compel arbitration.

The Appellate Division unanimously affirmed the lower court’s ruling.

The sole issue to be resolved in this appeal, explained the Appellate Division, is whether the parties "have agreed to arbitrate the dispute at issue" pursuant to their collective bargaining agreement (CBA).” A court’s review of that question, however, is limited.  

Holding that Supreme Court “properly determined that, because the CBA contains a broad arbitration clause, and there is a reasonable relationship between the subject matter of the dispute, i.e., the transfer of a teacher to another position, and the general subject matter of the CBA," whether the grievance falls within the scope of the arbitration provision set out in the CBA is for the arbitrator, and not the court, to determine.

The decision is posted on the Internet at:

Top of Form

Bottom of Form

http://www.nycourts.gov/reporter/3dseries/2016/2016_04866.htm

Daughter admits stealing over $148,000 of New York State Public Employees’ Retirement System funds after failing to report her retired father’s death

Daughter admits stealing over $148,000 of New York State Public Employees’ Retirement System funds after failing to report her retired father’s death

Source: Office of the State Comptroller

New York State Comptroller Thomas DiNapoli and Attorney General Eric T. Schneiderman announced that Renee Kanas, 63, a resident of Tamarac, Florida, pleaded guilty today to Grand Larceny in the Third Degree, a Class D felony, for stealing over $148,000 in pension payments from the New York State and Local Employees Retirement System paid to her father, Jacob Yudenfreund, a New York State pensioner who died in March 2010.

By failing to notify the New York Stateand Local Employees Retirement System of her father’s passing in March 2010, Kanas she continued to collect his pension benefits for approximately five years. During this time period, Kanas lived off the stolen money and, among other things, took multiple cruises, including to the Caribbean.

In May 2016, Kanas was arrested on a warrant by City of Tamarac Road Patroland Broward County Sheriff’s in Florida. Having been brought to Albany Countyto face these charges, on June 30, 2016, Kanas today pleaded guilty before Honorable Thomas A. Breslin in Albany Supreme Court. As part of her plea, Kanas signed a confession of judgment in favor of New York Statein the amount of $148,092.24 and now faces up six years in state prison when she is sentenced.

The investigation was conducted by the New York State Comptroller’s Division of Investigations and the Attorney General. This case is the latest joint investigation under the Operation Integrity partnership of the Comptroller and Attorney General, which to date has resulted in dozens of convictions and more than $11 million in restitution. Comptroller DiNapoli and the Attorney General thank the City of Tamarac Road Patrol and Broward County Sheriff’s in Floridafor their assistance.

The Comptroller’s investigation was conducted by the Comptroller’s Division of Investigations, working with the New York Stateand Local Retirement System.

The Attorney General’s investigation was conducted by Investigator Mark Spencer, Investigator Casey Quinlan and Deputy Chief Antoine Karam. Forensic accounting was performed by Associate Forensic Auditor Meaghan Scovello. The Investigations Bureau is led by Chief Dominick Zarrella. The Forensic Audit Section is led by Chief Auditor Edward J. Keegan.

This case is being prosecuted by Assistant Attorney General Philip V. Apruzzese of the Criminal Enforcement and Financial Crimes Bureau. The Criminal Enforcement and Financial Crimes Bureau is led by Bureau Chief Gary T. Fishman and Deputy Bureau Chief Stephanie Swenton. The Division of Criminal Justice is led by Executive Deputy Attorney General Kelly Donovan.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Individuals can report allegations of fraud involving public funds by calling the toll-free Fraud Hotline at 1-888-672-4555, by transmitting an e-mail to investigations@osc.state.ny.us, by filing a complaint online athttp://osc.state.ny.us/investigations/complaintform2.htm or by mailing a complaint to Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

State Division of Human Rights’ complaint alleging discriminatory housing practices filed in Supreme Court held untimely

State Division of Human Rights’ complaint alleging discriminatory housing practices filed in Supreme Court held untimely

New York State Div. of Human Rights v Folino, 2016 NY Slip Op 04821, Appellate Division, Fourth Department

The New York State Division of Human Rights (SDHR), on the complaint of Housing Opportunities Made Equal, Inc. (HOME), commenced an action in Supreme Court seeking damages from Anthony and Carmeline Folino for their alleged discriminatory housing practices. Supreme Court denied the Folino’s motion to dismiss SDHR’s complaint as untimely and the Folinos appealed the Supreme Court’s ruling.

The Appellate Division said that it agreed with the Folinos that Supreme Court erred in denying their pre-answer motion to dismiss the complaint as time-barred pursuant to CPLR §214(2). 

The court's decision noted that HOME had filed an administrative complaint with the United States Department of Housing and Urban Development, which then forwarded the matter to SDHR pursuant to a work-sharing agreement. Accordingly, said the Appellate Division, the running of the statute of limitations was tolled upon the filing of the administrative complaint, and during its pendency, until the administrative proceeding was terminated.

The Appellate Division explained that the last discriminatory act set forth in the SDHR’s complaint occurred on November 8, 2010, and thus the cause of action accrued and the three-year statute of limitations for the New York State Human Rights Law began to run on that date.

Following a probable cause determination by SDHR, the Folinos had submitted a notice of their election to terminate the administrative proceeding and instead "to have an action commenced in the civil court" by SDHR as authorized by Executive Law §297[9].* 

That election triggered the continuation of the running of the Statute of Limitations, the running of which had been tolled upon the filing of the administrative complaint by HOME.

The Appellate Division, noting that 143 days elapsed after the cause of action accrued and before the tolling period commenced upon HOME's filing of its administrative complaint, found that SDHR had two years and 222 days within which to commence the civil action after the tolling period ended. 

This period, said the court, ended on February 22, 2014. SDHR, however, did not commence its civil action until July 3, 2014. Accordingly, said the court, it was untimely, sustaining the Folino’s motion to dismiss complaint filed by SDHR in a civil court.

*§297[9] of the Executive Law, a statutory exception to the Doctrine of Election of Remedies, in pertinent part provides “…. Any party to a housing discrimination complaint shall have the right within twenty days following a determination of probable cause pursuant to subdivision two of this section to elect to have an action commenced in a civil court, and an attorney representing the division of human rights will be appointed to present the complaint in court, or, with the consent of the division, the case may be presented by complainant's attorney.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04821.htm

A probationary employee may not be dismissed from his or her position in bad faith or for an improper or unlawful reason

A probationary employee may not be dismissed from his or her position in bad faith or for an improper or unlawful reason

Castro v Schriro, 2016 NY Slip Op 05105, Appellate Division, First Department

Supreme Court denied Raymond Castro’s CPLR Article 78 petition seeking a court order annulling  his termination from his position as a probationary correction officer with the New York City Department of Corrections [DOC]. The Appellate Division, reversing the lower court’s action, reinstated Castro’s petition and remanded the matter to Supreme Court for further proceedings.

The Appellate Division summarized the events leading to Castro’s termination as follows: Castro was terminated “after an inmate died because [Castro’s] superior, a captain, thwarted the efforts of several people, including Officer Castro, to assist the inmate with his medical condition. Officer Castro cooperated in the investigation of the inmate's death and the federal prosecution of his superior.”

The decision sets out “the present record” with respect to the events that preceded Castro’s termination in some detail and opines that “Officer Castro's termination, without an explanation [by DOC], appears questionable and in bad faith. Under the circumstances, this Court is unable to conclude that his claim of wrongful termination as a probationary correction officer is without foundation to warrant a pre-answer dismissal based solely on the ground that it fails to state a cause of action.”

Citing Swinton v Safir, 93 NY2d 758, the Appellate Division said that a “probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise,* absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason” and the burden falls on the petitioner to demonstrate by competent proof that bad faith exists, or that the termination was for an improper or impermissible reason.”

DOC had asked Supreme Court to dismiss Castro’s Article 78 petition at the pre-answer stage on the sole ground that his petition failed to state a cause of action. The Appellate Division said it disagreed with Supreme Court's determination that the petition failed to sufficiently state a claim of improper termination of a probationary correction officer, noting that Castro alleged that his termination was arbitrary and capricious, and in bad faith and set out “a factual predicate for his allegations.”

Castro’s petition, said the court, “avers that despite serving as a correction officer who acted in complete accord with DOC's rules and proper protocol, pursuant to orders from his supervisor, and in full cooperation with the investigation of inmate Echevarria's death, which lead to Captain Pendergrass' indictment, Officer Castro was inexplicably terminated.”

Noting that in its appeal DOC made no attempt to refute Castro’s allegations but simply argued that, as a probationary employee, it was not required to furnish Castro with the charges against him and he could be dismissed without a reason being stated.

The Appellate Division rejected DOC’s argument, explaining that Castro’s termination was within the ambit of an exception to this general principle. The court ruled that where a substantial issue of bad faith is raised, as was here the case, in that the termination a probationary employee may not have been the result of the probationary employee's failure to perform his or her duties satisfactorily but may have been due to some improper basis, a petition should not be dismissed on the pleadings.

DOC presented nothing other than a pre-answer motion to dismiss Castro based on the sole ground that Castro’s petition failed to state a claim of improper termination. The Appellate Division said that although the burden falls squarely on Castro to demonstrate by competent proof at an evidentiary hearing that his termination was for an improper or impermissible reason, DOC, as the firing agency, “should be required to provide responsive pleadings so as to explain the basis of the termination.”  

Accordingly, the matter was remanded to Supreme Court for further consideration.

* Courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. The rationale for this was noted in McKee v. Jackson, 152 AD2d 54, where the court said that a probationer is entitled to a minimum period of time to demonstrate his or her ability to successfully perform the duties of the position. In contrast, as the Court of Appeals held in Gray v Bronx Developmental Center, 65 NY2d 904, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05105.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions and the termination of permanent,  provisional, temporary and term state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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Where the collective bargaining agreement so provides, an allegation that the employer violated the “whistle-blower” statute is adjudicated in accordance with the terms of the agreement

Where the collective bargaining agreement so provides, an allegation that the employer violated the “whistle-blower” statute is adjudicated in accordance with the terms of the agreement

DiGregorio v MTA Metro-N. R.R., 2016 NY Slip Op 04807, Appellate Division, First Department

A former employee of MTA Metro-North Railroad, Lisa DiGregorio, sued MTA Metro-North alleging it had violated §75-b of New York State’s Civil Service Law, the so-called “whistle-blower statute” applicable to employees of the State and political subdivisions of the State.

The Appellate Division, citing Subdivisions (3)(b) and (3)(c) of Civil Service Law §75-b, affirmed Supreme Court’s dismissal of her petition, explaining that Lisa DiGregorio’s complaint “may not be litigated in this forum” because the relevant collective bargaining agreement contained provisions addressing situations involving the employer's taking of adverse personnel actions and which contains a final and binding arbitration provision.

Accordingly, said the court, DiGregorio was required to arbitrate her complaint.* 

CSL §75-b(2)(a) provides that “(a) A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding  the employee's employment because the employee disclosed allegations of  “improper governmental action” to a  governmental body if the employee satisfies certain conditions.

CSL §75-b(3)(b) provides that “Where an employee is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement and the employee reasonably believes that such personnel action would not have been taken but for the conduct protected under [subdivision 2 of CSL §75-b], he or she may assert such as a claim before the arbitrator. The arbitrator shall consider such claim and determine its merits and shall, if a determination is made that such adverse personnel action is based on a violation by the employer of such subdivision, take such action to remedy the violation as is permitted by the collectively negotiated agreement.” [Emphasis supplied].

In contrast, if a public employee is not subject to any of the provisions of CSL §75-b(2)(a) or §75-b(2)(b), the individual may commence “an action in a court of competent jurisdiction under the same terms and conditions as set out in Labor Law Article 25-c.”

Article 25-c[4] of the Labor Law provides that where an employer is alleged to have violated Article 25-c, “An employee who has been the subject of a retaliatory personnel action in violation of this section may institute a civil action in a court of competent jurisdiction for relief as set forth in subdivision five of this section within one year after the alleged retaliatory personnel action was taken.”

* In Kowaleski v New York State Dept. of Correctional Servs., 16 NY3d 85, the Court of Appeals held that an arbitrator’s refusal to hear an employee’s “whistle blower” defense in the course of disciplinary hearing required the vacating of the award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04807.htm

A two-prong test is used by courts to determine if a provision in a collective bargaining agreement is subject to arbitration

A two-prong test is used by courts to determine if a provision in a collective bargaining agreement is subject to arbitration

Matter of Cortland County (CSEA, Inc., Local 1000 AFSCME, AFL-CIO), 2016 NY Slip Op 04481, Appellate Division, Third Department

Lawrence Jackson, a correction officer employed by the Cortland County Sheriff’s Department [County], was diagnosed with plantar fasciitis* in his left foot and was subsequently awarded workers' compensation benefits. However, his application for disability benefits pursuant to General Municipal Law §207-c was denied, which administrative determination was affirmed by the Appellate Division [see Matter of Jackson v Barber, 133 AD3d 958].

In August 2013, Jacksonsubmitted a physician's note stating that, as a result of his foot condition, he was restricted from working more than 40 hours and 35 minutes per week. Although the County initially accommodated Jackson's limitation, in September 2013, the County notified Jackson that his "availability to work mandatory overtime [wa]s an essential function of [his] position" and that his "limited availability pose[d] a safety issue . . . [that] could result in an understaffed shift," it could not accommodate his work "restriction on a continuing basis" and was therefore placing him on family and medical leave until such time as he was "able to complete all essential functions of [his] position."

Jackson’s employee organization for collective bargaining, CSEA, Inc., Local 1000 [CSEA], submitted a grievance on behalf of Jackson alleging the County had violated the collective bargaining agreement [CBA] between the parties by refusing to accommodate Jackson's work restriction. The County denied the grievance. In response to CSEA’s demand for arbitration the County filed a petition in Supreme Court pursuant to §7503(b) of the CPLR seeking a permanent stay of arbitration.

Concluding that the dispute was arbitrable, Supreme Court denied the County’s application for the permanent stay of arbitration. The County appealed and the Appellate Division sustained the lower court’s ruling.

The Appellate Division explained that "The court's role in reviewing applications to stay arbitration is . . . a limited one" and a two-prong test is used to determine if the dispute arbitrable.

The court initially considers if the subject of the claim sought to be arbitrated is the type authorized by Civil Service Law Article 14 [the Taylor Law] and is not barred by constitutional, statutory or public policy considerations, the first test. 

If the demand for arbitration meets this test, the court will then consider the grievance and arbitration provisions set out in the collective bargaining agreement. Where the arbitration clause in a collective bargaining agreement is broad, said the Appellate Division, courts "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

Not discerning any constitutional, statutory or public policy considerations that prohibit arbitration of the dispute, the Appellate Division considered the second prong of the test. Noting that the CBA defines an arbitrable grievance as "any alleged violation of the terms and conditions of employment,” as defined in the CBA, including any misinterpretation or misapplication of the agreement or past practices, the court noted that Article 5 of the CBA addresses employee work schedules, including certain required overtime, and includes a section on "Light Duty Assignments." **

As the CBA specifically addresses overtime and contemplates the availability of light-duty assignments, the Appellate Division found that there was a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA for the purpose of resolving the matter by arbitration. 

Recognizing that certain substantive clauses in the CBA might not support the grievances, the court said that  issue was irrelevant with respect to the threshold question of arbitrability, as the arbitrator, and not the court, is to resolve any uncertainty concerning the substantive rights and obligations of the parties."

Accordingly, the Appellate Division ruled that Supreme Court had properly determined that the dispute should be submitted to arbitration.

* A pain in the heel resulting from the inflammation the plantar, a thick band of tissue in the heel.

** Additionally, said the court, “Article 20 of the CBA discusses overtime and sets forth the procedure for assigning mandatory overtime shifts.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_04481.htm

Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New York State public employer

Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New York State public employer

Porco v New York State Teachers' Retirement Sys., 2016 NY Slip Op 04777, Appellate Division, Third Department

Supreme Court dismissed Joan Porco's application seeking a review of the New York State Teachers' Retirement System’s [TRS] determination denying her years of service credit for retirement purposes for certain months of service.

Porco joined TRS as a “Tier 2” member upon commencing employment as a public school teacher. Subsequently Porco sustained a serious injury and applied for, and was granted, disability retirement pursuant to Education Law §511. Later Porco returned to work for a period of three months, during which period she continued receiving her disability retirement allowance. In response to Porco's request for clarification regarding earning "member service credit" for those three months of employment, TRS advised Porco that she was ineligible to receive such credit for that period of employment.

Ultimately TRS issued a final determination denying Porco member service credit for the disputed three-month period. Porco then initiated a CPLR Article 78 proceeding challenging that determination. Supreme Court upheld TRS’s decision and dismissed Porco’s petition, which ruling was sustained by the Appellate Division.

The Appellate Division, citing Maillard v New York State Teachers Retirement System, 57 AD3d 1299, explained when an administrative determination is rendered without a hearing, a court’s review "is limited to whether [the determination] is arbitrary, capricious or without a rational basis." Further, said the court, “given that [TRS] is charged with administering the retirement statutes at issue, its interpretations are entitled to deference and should be upheld unless they are irrational, unreasonable or inconsistent with the governing law.”

As a general rule, said the court, "retirement on a pension" causes a person's membership in the retirement system to cease. With respect to an individual receiving a retirement allowance from TRS, Education Law §511(5) permits "Tier 2 disability retirees" to resume active service while still receiving disability retirement benefits subject to certain limitations salary limitations. Such a retiree, however, "shall not become a member of [TRS]."

In contrast, should the retiree be restored to active service at a salary as great as, or greater, than his or her final average salary, "his [or her] retirement allowance shall cease, and he [or she] shall again become a member of [TRS]." Education Law §511[6] provides that such an individual’s "prior service certificate on the basis of which his [or her] service was computed at the time of his [or her] retirement shall be renewed." Upon such individual’s subsequent retirement, he or she "shall be credited" with both the service credit reflected in the prior service certificate and "all [of] his [or her] service as a member subsequent to the period covered by his [or her] prior service certificate"

Finding that TRS’s interpretation of these statutes was rational and reasonable, the Appellate Division concluded that Porco’s membership in TRS cease when she began receiving disability retirement benefits and although she had returned to work during the disputed three months, because her salary did not exceed the statutory cap, Education Law §511(5) explicitly barred her from becoming a member of TRS during that period of time.  

Accordingly, ruled the Appellate Division, TRS’s determination denying years of service credits to Porco for this three-month period would not be disturbed.

Similar rules apply is situations where an individual is receiving a retirement allowance from another New York public retirement system [see §150 of the Civil Service Law, Suspension of pension and annuity during public employment, and, generally, §§210 – 217 of the Retirement and Social Security Law] with respect to the re-employment of such retired individuals in public service of the State or a political subdivision of the State.

* The decision notes that Porco received $6,809.91 in disability retirement benefits as well as her salary during this three-month period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04777.htm