From the LawBlogs – Week ending July 16, 2016

From the LawBlogs – Week ending July 16, 2016

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Posted by Justia

Administrative appeal vacated because the administrative agencies failed to recognized that the employee’s personnel record considered was internally contradictory

Grover v. Office of Pers. Mgmt., U.S. Court of Appeals for the Federal Circuit Docket: 15-3160

Grover worked for many years for the Customs and Border Protection service and participated in the Civil Service Retirement System, 5 U.S.C. 8331–8351. He retired in 2008 and applied for a retirement annuity. By statute, the annuity must reflect the highest average annual pay based on three consecutive years of specified service, and for a customs officer like Grover in the years in question, the calculation must include overtime pay up to $17,500. The Office of Personnel Management (OPM), in calculating Grover’s pay, did not include anything close to $17,500 in overtime pay, although Grover asserted that he received more than $17,500 in overtime pay in those years. The Merit Systems Protection Board upheld OPM’s calculation, which relied on a particular official record. The Federal Circuit vacated. Neither OPM nor the Board recognized that the record is internally contradictory about what overtime pay Grover received, so neither sought further information, such as pay stubs, that might definitively resolve the uncertainty. The regulation does not permit the Board to affirm OPM’s calculation without resolving the amount-of-overtime-pay factual issue.

Application for disability retirement based on alleged depression, anxiety, and panic attacks rejected

Rossignol v. Maine Pub. Employees Ret. Sys., Court: Maine Supreme Judicial Court Citation: 2016 ME 115

After Robert Rossignol was notified that his teaching contract would not be renewed, Rossignol applied to the Maine Public Employees Retirement System (MPERS) for disability retirement benefits. Rossignol alleged that he suffered from depression, anxiety, and panic attacks, which made it impossible for him to perform the duties of his position. The Executive Director’s designee denied Rossignol’s application. The MPERS Board of Trustees affirmed the denial of disability retirement benefits. The Supreme Court affirmed, holding that Rossignol failed to demonstrate that, under the governing statutory standard, he was entitled to disability retirement benefits.

Group prayer while on duty

Marrero-Mendez v. Calixto-Rodriguez, U.S. Court of Appeals for the First Circuit , Docket: 14-2030

Plaintiff, a Puerto Rico Police Department law enforcement officer, filed a complaint alleging that Defendants, his superior officers, violated the Establishment Clause by holding a group prayer while on duty and punishing Plaintiff for his non-conformance. Defendants moved to dismiss the complaint on the grounds that the complaint failed to allege plausibly a constitutional violation, and invoking qualified immunity. The district court denied the motion on both grounds. Appellants filed this interlocutory appeal to challenge the court’s denial of qualified immunity. The First Circuit affirmed, holding that the district court did not err in rejecting Defendants’ qualified immunity defense.

Posted by Employment Law News [WK WorkDay]

Union may sue union director, other agents under LMRDA for breach of fiduciary duty

By Ronald Miller, J.D.

The Labor-Management Reporting and Disclosure Act (LMRDA) contains an implied cause of action for a union to bring a lawsuit for breach of the fiduciary duties by an officer or other agents of the union, ruled a divided D.C. Circuit. Consequently, the appeals court reversed a district court’s order dismissing the union’s claims under Section 501 and state law for lack of subject matter jurisdiction. Judge Tatel not only wrote the majority opinion, he also wrote a separate concurring opinion. Additionally, Judge Millett wrote a separate concurring opinion, while Judge Kavanaugh wrote a separate dissenting opinion (International Union, Security, Police and Fire Professionals of America v. Faye, July 15, 2016, Tatel, D.).

The union filed suit against the district director of a union office, alleging that while it employed him, he breached his fiduciary duties in a number of ways, including joining a rival union. The union also asserted claims under state law. According to the union, the employee attempted to establish a rival union and misused the union’s resources to achieve that goal. A district court concluded that the LMRDA provides a cause of action only to individual union members, not to the union itself, and that the LMRA provides no cause of action to a union seeking to sue a non-member employee. The district court further concluded that because neither federal statute provided the union with a cause of action, it lacked federal question jurisdiction over the case. Additionally, the district court ruled that it had “no basis to exercise supplemental jurisdiction over plaintiff’s state common law claims.”

On appeal, the union contended that the LMRDA gives it a cause of action and that the district court also had supplemental jurisdiction over its state law claims. This case presents the issue whether LMRDA Section 501 provides a union with a federal cause of action against its agent for breach of a fiduciary duty owed to the union.

Nature of inquiry.Before proceeding to the merits, the D.C. Circuit observed that, like the district court, earlier decisions tended to speak of the inquiry in jurisdictional terms.

However, in Arbaugh v. Y&H Corp., the Supreme Court made clear that the question whether the plaintiff has a cause of action is distinct from the question whether a district court has subject matter jurisdiction. Here, the union’s claim was at least “arguable,” regardless of whether it was “valid.” Thus, the court’s inquiry goes to the merits, not jurisdiction, which existed under the general federal question jurisdiction statute.

Implied cause of action.In determining whether an implied cause of action exists, “[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative.” Congress enacted the LMRDA in 1959 in response to various union corruption scandals. The statute gives union members an express federal cause of action against a union agent for breach of the fiduciary duties set forth in Section 501(a). Union members may bring such a suit “for the benefit of the [union],” provided that they first satisfy certain procedural requirements. However, central to this case nothing in the statute expressly gives the union itself such a cause of action.

In assessing whether a union has an implied cause of action under Section 501, the appeals court, citing Weaver v. United Mine Workers of America, observed that it was not writing on a clean slate. Weaver held that where union members have properly sued under Section 501, the union itself may take control of the suit and displace the union members. In this case, the district court distinguished Weaver on the ground that the opinion “did not address a union’s right to initiate suit on its own behalf.” Here, the appeals court noted that neither the district court, nor the defendant offered any persuasive justification for reading the statute to require that a union “be accorded [the] right” to take over a suit that “since its commencement has in reality been its own,” but not to allow the union to simply bring “its own” suit in the first instance.

Accordingly, the D.C. Circuit concluded that the reasoning necessary to the decision in Weavercompels the conclusion that a union may indeed bring a Section 501 suit in the first instance. Moreover, because the union’s Section 501 claim was properly before the district court, supplemental jurisdiction existed for the union’s state law claims.

Concurrence. Writing separately, Judge Tatel argued that even absent Weaver, he would conclude that Section 501 gives unions a cause of action. In his view, the statute’s text and structure revealed Congress’s intent both to create federal rights and to allow unions to vindicate those rights in federal court. Moreover, Tatel argued that the defendant’s reading of the statute becomes even less tenable when the court’s interpretation of Section 501 in Weaver is layered on top of it. The defendant’s position would suggest that the union has no ability to bring a federal suit in the first instance, but could displace its members and proceed to litigate the members’ suit against its agents in federal court.

In his own concurring opinion, Judge Millett agreed with the result in Weaver, and wrote separately to explain further his conviction that Weaver controls notwithstanding the arguments made in the dissenting opinion, and yet to acknowledge the force of the arguments against Weaver’s correctness, as well as to note the potential constitutional problems raised by the issue. Judge Millett observed that if the court were writing on a clean slate, the relevant indicia of statutory intent would weigh heavily against implying a right of action for unions to prosecute lawsuits under Section 501. However, he pointed out that unless the union can sue, the enforcement scheme that Congress devised could potentially run into some constitutional concerns.

Dissent. In a dissenting opinion, Judge Kavanaugh argued that a union did not possess a federal cause of action to sue their officers for breaches of fiduciary duties. According to the dissent, the decision in Weaver did not control the outcome of this case. The dissent pointed out that subsection (b) of Section 501, by its terms, does not give a union—as opposed to union members—a cause of action. Further, Judge Kavanaugh observed that that statutory silence had precipitated a circuit split, with the Seventh and Eleventh Circuits holding that a union has an implied cause of action, while the Ninth Circuit has held that unions do not have an implied cause of action under Section 501. Arguing that Section 501 did not create a cause of action for unions, the dissent urged that the judgment of the district court dismissing the union’s action should be affirmed.

Membership in the NYS Employees’ Retirement System for 10 years is not necessarily the same as the member having 10 years of member service credit

Membership in the NYS Employees’ Retirement System for 10 years is not necessarily the same as the member having 10 years of member service credit

Caetano v DiNapoli, 2016 NY Slip Op 05222, Appellate Division, Third Department

Sharon Caetano, an employee of the Erie County Board of Elections, experienced a “slip and fall” while at work. Ultimately she filed an application for disability retirement benefits with New York State and Local Employees' Retirement System [ERS] alleging that she was permanently incapacitated from performing her job duties due to injuries she suffered as the result of the fall she experienced while at work.

ERS denied Caetano’s application on the grounds that [1] she had less than 10 years of member service credit in ERS and [2] that she had not established that her falling while at work constituted an accident within the meaning of the Retirement and Social Security Law [RSSL].

Caetano then appealed ERS' denial of her application for disability retirement. Following an administrative hearing, the Hearing Officer upheld ERS’ denial of Caetano’s application for disability retirement benefits. The Comptroller adopted the Hearing Officer's decision, and Caetano filed a CPLR Article 78 petition challenging the Comptroller’s decision.

The Appellate Division affirmed the Comptroller’s ruling, explaining that RSSL §605[b][1]) provides that a member of ERS is eligible for disability retirement benefits where the disability was not job related if the member has "at least [10] years of total service credit."

In contrast, RSSL §605[b][3] provides that a member of ERS with less than 10 years of members service credit is eligible for accidental disability retirement benefits if the member can show that his or her disability was "the natural and proximate result of an accident not caused by his [or her] own willful negligence sustained in the performance of his [or her] duties."

Although Caetano alleged that the Comptroller erred in calculating her member service credit, the court said that "The Comptroller is charged with the responsibility of determining service credits for retirement purposes and his determination will be upheld if rational and supported by substantial evidence." Further, said the Appellate Division, Caetano has the burden of establishing an entitlement to any additional member service credit she may claim greater than that determined by the Comptroller.

While the Comptroller ruled that Caetano had only attained 9.95 years of member service credit, Caetano contended that her yearly “service credits in her records” were inaccurate. She claimed that the Comptroller did not “take into account time that she was out of work and being paid workers' compensation benefits” in lieu of her salary based her belief that Erie County credited her with that time for retirement purposes.*

However, said the court, Erie County employment records do not reflect such “credit” and she failed to present any authority supporting her contention.

Considering Caetano’s employment records, the Appellate Division concluded that the Comptroller's determination that she had not attained 10 years of member service credit at the time she applied for disability retirement was rational and supported by substantial evidence. Further, said the court, Caetano did not satisfy her burden of establishing that she was entitled to additional service credit.

To be eligible for accidental disability retirement benefits, Caetano was required to demonstrate that her disability was the natural and proximate result of a work-related accident. For purposes of the RSSL, an accident is "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and "[A]n injury is not accidental in nature if it occurs as the result of an applicant's routine employment duties and does not involve an unexpected event."

Based on the record, the Comptroller determined that Caetano’s injuries were sustained as the result of her own misstep or inattention, and not because of an accident within the meaning of the RSSL. As that determination was supported by substantial evidence, the Appellate Division declined to disturb it. 

* Typically an employee on workers' compensation leave pursuant to Civil Service Law §71 earns sick leave and similar credits only while the individual remains "on the payroll" of the employer as the result of the employee electing to use available leave credits, overtime credits or similar accruals to do so [see Andrews v State of New York, 138 AD3d 1297, summarized on NYPPL at: http://publicpersonnellaw.blogspot.com/2016/04/accruing-vacation-and-sick-leave.html ].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05222.htm

Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers

Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers

Decisions of the Commissioner of Education, Decision No. 16,917

Mary Farber-Peck challenged the Herkimer Central School District's Board of Education's decision to abolish the position in which she had been serving and assign the courses previously taught by her in that positition to other teachers in the school district.

Farber-Peck was initially appointed as a teacher of business and distributive education and subsequently granted tenure in the business education tenure area.*  The Board voted to abolish two positions in the business education tenure area. Presumably, Farber-Peck was one of the two least senior teachers in that tenure area. Accordingly, she was "excessed" and  her name was placed on a “preferred eligibility list.” as the result of the Board's action. 

Subsequently the Board assigned certain courses previously taught by Farber-Peck to three other teachers, Michelle Ploss, Kristin Smith and Glen Manning. 

Farber-Peck appealed the Board's action to the Commissioner of Education, alleging that the Board had “improperly abolished her position to circumvent her tenure and seniority rights.”  She also alleged that during the 2011-2012 school year, teachers were improperly assigned to teach certain business education courses, previously taught by her, outside of their respective certification areas. 

The District argued that  Farber-Peck has not met her burden of proving that it improperly abolished her position; that its assignment of certain courses previously taught by her to other teachers was permissible and that no new position has been created to which she has any clear legal right. 

The District also asserted that certain necessary parties were not joined in the action and thus Farber-Peck's appeal must be dismissed.

Clearly, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such, which requires that the individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Here, however, the Commissioner said that with respect to such "other parties" there is “no evidence that Ploss, Smith or Manning would be adversely affected should [Farber-Peck] prevail herein because such a result would impact only one course in their overall workload.” Further, said the Commissioner, Farber-Peck does not seek dismissal or reassignment of those teachers and there is no evidence that the employment status of those individuals would be adversely affected.  Accordingly, ruled the Commissioner, the three were not necessary parties and need not be joined as respondents and the appeal would not be dismissed on that procedural basis.

Turning to the merits of Farber-Peck’s appeal, the Commissioner said that a board of education may abolish and, or, consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith. Further, in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief he or she requested and the burden of establishing the facts upon which he or she seeks relief.

The record before the Commissioner indicated that, at a budget information meeting, the Board discussed the difficult economic climate facing the District and indicated that it was necessary to make significant cuts in the school budget due to cost increases and revenue constraints, and potential staff reductions, including two business teacher positions, were discussed. 

Noting that Farber-Peck “does not claim otherwise in her petition,"  the Commissioner said that, on the record before her, Farber-Peck has not met her burden of established that Board acted in bad faith or was motivated to abolish positions for other than economic reasons and thus “there is no basis on which to conclude that [the Board] abolition of [Farber-Peck] position was improper."

In addition, the Commissioner observed that the record indicated that “no vacancy occurred and no new position was created; instead, [Farber-Peck’s] former teaching duties were redistributed … albeit to teachers who [Farber-Peck] asserts lack the proper certification."  Further, the District's interim superintendent of schools indicated that the District would not offer any courses that otherwise would have been assigned to Farber-Peck in the subsequent school year and that, consequently, Smith and Manning would not be assigned to teach those courses.** 

However, said the Commissioner, were the Board to subsequently creates a new position in the business education tenure area Farber-Peck “may, indeed, be entitled to such position by virtue of her place on the preferred eligible list of candidates.”  However, ruled the Commissioner, Farber-Peck had not demonstrated legal right to relief she requested -- an order that the Board create a new part-time position rather than a claim of a right to an appointment to a position the Board has created.

Accordingly, Commissioner dismissed Farber-Peck’s appeal.

* The Commissioner of Education noted that, pursuant to 8 NYCRR §30-1.8 (c)(4), Farber-Peck should have been appointed “to serve in a special subject tenure area co-extensive with her teaching certificate in business and distributive education.”

** See, also, Decisions of the Commissioner Number 13,433 in which the Commissioner cites Appeal of Chaney, 33 Ed Dept Rep 12; Young v. Board of Education, 41 AD2d 966, aff'd 35 NY2d 31, [distribution or reassignment of “duties” consistent with the principle of "fractionalization, i.e., the division and, or, consolidation of certain work duties formerly performed by incumbents of abolished and unfilled titles [See Jodre v Locust Val. Cent. School Dist., 2011 NY Slip Op 31076(U), [ Not officially reported].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16917

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