The conduct of a municipality or government entity may serve to ratify the terms and conditions of an agreement not approved as provided by law

The conduct of a municipality or government entity may serve to ratify the terms and conditions of an agreement not approved as provided by law

Prudenti v County of Suffolk, Appellate Division, 2016 NY Slip Op 06203

On September 20, 2011, the then Suffolk County Executive entered into a Memorandum of Agreement [MOA] with the Suffolk County Deputy Sheriffs Police Benevolent Association [DSPBA] pursuant to which DSPBA agreed to defer the payment of approximately $4 million in retroactive pay increases its members that had been awarded to DSPBA members by an arbitration panel for the period January 2008 through December 2010 until December 2015. In exchange, Suffolk County agreed not to transfer any of the DSPBA members' official duties to other law enforcement officers through December 2017. Suffolk and DSPBA also agreed that any disputes concerning the interpretation and, or, implementation of any provision of the MOA could be submitted to arbitration.

Notwithstanding the “no transfer” provision in the MOA, in September 2012, the successor County Executive and the County entered into an agreement with the Suffolk County Police Benevolent Association [PBA] that provided that the County would transfer certain highway patrol and enforcement work previously assigned to DSPBA members to PBA members.

DSPBA filed a demand for arbitration and subsequently commenced a CPLR Article 75 action seeking a preliminary injunction prohibiting Suffolk County from transferring the highway patrol and enforcement work to members of the PBA pending resolution of the arbitration proceeding and, in addition, for a judgment declaring that the MOA is valid and enforceable.

Suffolk County cross-moved to permanently stay the arbitration proceeding contending [1] that no valid agreement to arbitrate the MOA had been made and [2] that the wage deferral provisions of the MOA were invalid because they called for an additional appropriation of funds that had not been approved by the County Legislature.* The Suffolk County Superior Officers Association [SOA] and PBA joined in the motions to stay the arbitration and to dismiss DSPBA’s complaint.

Supreme Court held that the MOA entered into by the former Suffolk County Executive and the DSPBA was valid and enforceable and rejected motions pursuant to CPLR 7503(b) by Suffolk, the PBA, and the SOA to permanently stay arbitration. The court also directed Suffolk County and DSPBA to proceed to arbitration. Suffolk County, PBA and SOA appealed.

The Appellate Division first ruled that, contrary to the contentions of Suffolk County, the PBA, and the SOA, Supreme Court's declaration upholding the validity of the MOA was procedurally proper.

Addressing the merits of the action, the Appellate Division held that Supreme Court correctly determined that the MOA was valid and enforceable as matter of law, regardless of whether the wage deferral provisions required legislative approval pursuant to Civil Service Law §204-a(1), because the County Legislature had ratified those provisions by its conduct.

The court explained that a contract that is not approved by the relevant municipal or governmental body as required by law, rule, or regulation may be ratified by the municipality or government body by its subsequent conduct. In this instance, said the Appellate Division, it was demonstrated “prima facie” that the County Legislature “accepted the benefits of the MOA and partially performed thereunder with knowledge of its terms in a manner clearly referable to the agreement.”

As the County, the SOA, and the PBA failed to raise a triable issue of fact, the Appellate Division said the Supreme Court properly concluded that the County Legislature had ratified the MOA.

* Civil Service Law §204-a.1 requires that “Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in type not smaller than the largest type used elsewhere in such agreement: "It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06203.htm

Rescinding an offer of employment after employee failed to complete necessary routine paperwork does not constitute “unlawful retaliation”

Rescinding an offer of employment after employee failed to complete necessary routine paperwork does not constitute “unlawful retaliation”
Ruderman v City of New York, 2016 NY Slip Op 06148, Appellate Division, First Department

An order of Supreme Court granting the motion of the City of New Yorkto dismiss Irving Ruderman complaint alleging “retaliation” was unanimously affirmed by the Appellate Division, which noted that although the Supreme Court’s order did not expressly address Ruderman’s retaliation claim, it unambiguously granted New York City’s motion to dismiss in its entirety.

In order to establish a prima facie case of retaliation, the individual is required to show that:

(1) he or she had engaged in protected activity,

(2) his or her employer was aware that he or she participated in such activity,

(3) he or she suffered an adverse employment action based upon his or her activity, and

(4) there is "a causal connection between the protected activity and the adverse [personnel] action" alleged to have suffered by the individual.

The Appellate Division explained Ruderman’s retaliation claims brought pursuant to Federal and State Civil Rights Law and under the New York City Human Rights Law was properly dismissed by Supreme Court because Ruderman's complaint failed to provide a basis for a reasonable jury to conclude that the job offer that was extended to him was rescinded because of his inquiry he had sent to the Equal Employment Opportunity Commission [EEOC].

The court noted that there was no dispute that the job offer made to Ruderman was re-confirmed “even after City of New York employees were aware of the inquiry” Ruderman had submitted to EEOC.

Nor, said the Appellate Division, was there any dispute that Ruderman failed to complete the required routine paperwork related to his employment. Indeed, said the court, Ruderman was advised that his failure to complete this paperwork might result in his not being appointed to the position that was offered. Notwithstanding this warning, Ruderman did not complete the paperwork.

With respect to Ruderman's allegations of unlawful retaliation, the Appellate Division ruled that he failed to allege facts sufficient to demonstrate any causal connection between his not being appointed to the position and his having made an “EEOC inquiry.” 

In addition, said the court, the reason given by the City for rescinding its job offer -- Ruderman's failure to complete the required paperwork -- did not constitute a pretext for unlawful retaliation in violation of the relevant Federal, State or City discrimination laws.

As the United States Court of Appeals for the 5^thCircuit held in Wallace v Methodist Hospital System, 271 F.3d 212, where the employer has presented a lawful reason to rebut an individual’s prima facie evidence of unlawful discrimination, the burden shifts to the charging party to “present facts to rebut each and every legitimate non-discriminatory reason advanced by [the employer] in order to survive [a motion for] summary judgment” submitted to the court by the employer. Implicit in this ruling: if but one of the explanations offered by an employer in defending itself against allegations of unlawful discrimination survives, the employer will prevail.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06148.htm

Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty

Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty
2016 NY Slip Op 06184, Appellate Division, First Department

The Appellate Division reversed, on the law, Supreme Court’s denial of an CPLR Article 75 petition filed by a teacher seeking an order vacating that part of an arbitration award that terminated his employment as a tenured teacher. The matter was then remanded to the appointing authority for the imposition of a lesser penalty.

The evidence presented at the disciplinary arbitration hearing established that the teacher, an eighth-grade physical education teacher, had initiated conversations with at least two of his female students asking them "if they had older sisters, and, if so, how old they were, whether they had boyfriends, and whether they had photographs of them" and accepted the phone number of one student's 23 year-old sister.

One student had testified that the teacher’s conduct made her feel "uncomfortable," and another said that his conduct "aggravated" her.

Of the 12 specifications filed against the teacher, the Hearing Officer dismissed five. Finding the teacher guilty of the seven remaining specifications, including an allegation that he had engaged in similar behavior in a previous school year, the hearing officer said that he had found the teacher “to be insufficiently remorseful, that his actions revealed ‘moral failings,’ and that, although termination might be ‘too severe,’ it was the only penalty that could ‘jolt’ [the teacher] into an understanding of the seriousness of his misconduct.”

In view of “all the circumstances of the case, including the lack of any prior allegations of misconduct [filed] against the teacher during 13 years of service and the fact that the misconduct does not violate any specific rule or regulation,” the Appellate Division said that it found the penalty imposed, termination, sufficiently “disproportionate to the offenses to shock the conscience” of the court.

Further, said the court, the teacher had never been warned or reprimanded regarding the conduct at issue, and, contrary to the conclusion of the Hearing Officer, “there is no evidence that a warning or reprimand or other penalty short of termination would not have caused [the teacher] to cease the objectionable conduct immediately.”

The Appellate Division panel adjudicating this appeal, Justice Tom dissenting, said although it shared some of Justice Tom’s concern regarding the teacher’s behavior and his failure to express any deeper understanding of the inappropriate nature of his actions, it did not agree that the law supports imposing the penalty of termination “at this time.”

The court noted that the Hearing Officer found only that the teacher had made "inappropriate inquiries of his 8th grade female students regarding their female relatives, in furtherance of a personal agenda having nothing to do with school or his responsibilities as a teacher." Further, said the majority, the Hearing Officer did not find that the teacher actually intended to, or did, have any “romantic/sexual interactions” with anyone nor was there any evidence that the teacher “had made any sexual comments to his students.”

In the words of the majority, the teacher “showed very poor judgment, but he has not been shown to have violated any law, or even any rule or regulation of the Department of Education,” explaining that its decision does not excuse the teacher’s behavior but merely directs imposing “a less serious punishment.”

However, warned the majority, should such behavior continue, termination of the teacher “may well be in order in the future.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06184.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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