Determining if the parties agreed to resolve a particular grievance pursuant to the terms of the arbitration clause set out in a collective bargaining agreement

Determining if the parties agreed to resolve a particular grievance pursuant to the terms of the arbitration clause set out in a collective bargaining agreement

County of Monroe (Civil Serv. Employees Assn., Inc., Local 828, Unit 7423, 2017 NY Slip Op 04602, Appellate Division, 4th Department

Civil Service Employees Association, Inc., Local 828, Unit 7423 [7423] filed a grievance on behalf of certain retired former employees of the Monroe County Sheriff's Department, all of whom retired prior to January 1, 2000, when a collective bargaining agreement [CBA] that covered the period between 1994 through 1999 was in effect.

The grievance alleging that Monroe County had had violated the CBA by unilaterally changing the subject retirees' post-Medicare health insurance benefits.

Monroe County contended that any such alleged unilateral change was subject to resolution pursuant to the grievance and arbitration procedure set out in the 2009-2012 CBA. 7423, however, denied that the parties had agreed to resolve retiree health insurance benefit disputes for those retiring prior to January 1, 2000, by submitting it to the grievance and arbitration procedure set out in the 2009-2012 CBA.

When Monroe County demanded arbitration pursuant to the 2009-2012 CBA, 7423 commenced this proceeding, and the County cross-moved to compel arbitration. Supreme Court granted 7423's petition, permanently staying arbitration, and denied the County's cross motion to compel arbitration. Monroe County appealed but the Appellate Division sustained the Supreme Court's ruling.

Citing City of Buffalo v A.F.S.C.M.E. Council 35, Local 264, 107 AD2d 1049, the Appellate Division, agreeing with Supreme Court, concluded that the rights of the subject retirees are governed by the 1994-1999 CBA, which was in effect when they retired.

Then, in order to determine whether the grievance was arbitrable under the 1994-1999 CBA, the Appellate Division initiated "the requisite two-step inquiry." As to the first step of its inquiry - was there any statutory, constitutional or public policy prohibition against arbitration of the grievance -- the Appellate Division said " it is undisputed that there is no prohibition against arbitration of the grievance."

The court then considered the "second step" of the inquiry -  "... whether the parties did agree by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration."

Addressing this second element of the "two-step inquiry," the Appellate Division concluded that Supreme Court had properly determined that the parties did not agree to refer to arbitration retiree health benefit disputes raised by former employees who had retired prior to January 1, 2000.

The decision of the Appellate Division notes that that a "grievance clause in the 1994-1999 CBA" specifically excludes retirement benefits from the grievance and arbitration procedure. Accordingly, the court dismissed Monroe County's appeal, sustaining Supreme Court's order granting 7423's petition to stay arbitration and denying the County's cross-motion to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04602.htm

A police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"

A police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"

Oliver v D'Amico, 2017 NY Slip Op 04596, Appellate Division, Fourth Department

A former New York State Trooper, Jean Oliver, commenced a CPLR Article 78 proceeding seeking to annul Commissioner of State Police's determination finding her guilty of certain disciplinary charges or, in the alternative, to vacate the penalty of dismissal imposed upon her. Oliver contended that the Superintendent's determination was not supported by substantial evidence and that the penalty of dismissal is "shocking to one's sense of fairness."

Citing Wilson v City of White Plains, 95 NY2d 783, the Appellate Division sustained the Superintendent's determination, explaining that "It is well established that, '[i]n CPLR Article 78 proceedings to review decisions of administrative tribunals, the standard of review for the Appellate Divisions ... is whether there was substantial evidence to support the Hearing Officer's decision.'" The court found that, contrary to Oliver's contention, the Superintendent's determination was supported by substantial evidence.

Although Oliver also argued that the hearing panel had improperly expanded the charge in Charge number one by expanding the scope of the alleged order from an order to refrain from working on certain cases she had been assigned while at CNET to an order to refrain from working on relatedcases or being involved in "any matters related to her previous work, the Appellate Division rejected her contention, noting that Charge number one was "reasonably specific, in light of all the relevant circumstances, to apprise [Oliver] . . . of the charges against [her] . . . and to allow for the preparation of an adequate defense." Further, said the court, the evidence at the hearing established that "[Oliver's] guilt was based only on violations that were charged."*

As to the penalty imposed, dismissal, the court, quoting from Kelly, 96 NY2d at 38,  concluded that the penalty of termination is not shocking to one's sense of fairness noting that "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law . . . [T]he Appellate Division is subject to the same constraints as th[e] Court [of Appeals]—a penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law."

Of critical importance, said the Appellate Division, is the principal that "a State Trooper holds a position of great sensitivity and trust . . . and [a] higher standard of fitness and character pertains to police officers than to ordinary civil servants." Thus, given the conduct underlying the offenses -- directly disobeying an order and making false statements in an Internal Affairs interview and on official police records, and Oliver's refusal to accept any responsibility for her conduct. Accordingly, the court concluded that it could not say that the penalty of dismissal shocks its sense of fairness.

Finally, the court said it recognized that the allegations against Oliver did not involve any harm to the public, any misconduct for her personal gain or official corruption. It also noted that charges herein "were filed following petitioner's initial complaints of discrimination and that the Equal Employment Opportunity Commission has since found that "there is reasonable cause to believe that [the New York State Police] has discriminated against [petitioner] on account of her gender and in retaliation for engaging in a protected activity."

However, said the Appellate Division, its review of the penalty is extremely limited and it does not have any "discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed."

* Oliver also argued that the hearing panel failed to consider the retaliatory motive of the disciplinary charges in violation of Civil Service Law §75-b, the so-called "whistle blower statute." The Appellate Division said that she failed to raise that contention in her petition and thus that contention was "not properly" before it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04596.htm

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Recent Decisions by OATH Administrative Law Judges

Recent Decisions by OATH Administrative Law Judges

Source: NYC Office of Tribunals and Hearings

Dismissal of disciplinary charges recommended

OATH Index Nos. 1417/17 & 1418/17

OATH Administrative Law Judge Astrid B. Gloade recommended dismissal of charges that sanitation workers used department equipment without authorization to collect refuse from a home not on their assigned route.

The ALJ found that the home was across the street from workers' assigned route and that they were scheduled to service it the next day. The workers collected refuse from the home after they completed their assigned work and there was no evidence that the refuse they collected was trade waste.

Judge Gloade found that the fact that the workers failed to obtain authorization before collecting the refuse was too minor to warrant a sanction.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1417.pdf

Termination of hospital dietician recommended

OATH Index No. 282/17

OATH Administrative Law Judge Noel R. Garcia recommended termination of a hospital dietician for "misconduct and/or incompetence" after finding that the dietician failed to competently perform nutrition assessments for several patients over a six-month period, including recommending oral diets for patients who were on “nothing by mouth” status, recommending a tube feeding formula with insufficient calories for a patient who was severely malnourished, and failing to complete accurate assessments for high risk patients, placing patients’ health at risk.

Judge Garcia was not persuaded by the dietician's contention that he had a  "high volume of work," concluding that "To the extent [the dietician] attempted to justify any of [his acts, omissions or errors] by blaming an alleged high volume of work, such argument is without merit."

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-282.pdf

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Spoliation of evidence

Spoliation of evidence

Burke v Queen of Heaven R.C. Elementary Sch., 2017 NY Slip Op 04593, Appellate Division, Fourth Department

Kelly Burke commenced this action seeking damages for injuries that she sustained when she slipped and fell on stairs at a facility owned and operated by Queen of Heaven R.C. Elementary School [Defendant] and sought partial summary judgment as to liability against Defendant on the ground Defendant had destroyed and replaced the stairs after Burke had notified Defendants of her intent to have her expert inspect the stairs, contending that such destruction and replacement of the stairs in question constituted "spoliation of evidence".

With respect to "spoilage", the Appellate Division noted that "Where the evidence is determined to have been intentionally or wil[l]fully destroyed, the relevancy of the destroyed [evidence] is presumed." In contrast, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed [evidence was] relevant to the party's claim or defense."

In order to obtain sanctions for spoliation of evidence, the plaintiff had the burden of showing that [1] the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, [2] the evidence was destroyed with a culpable state of mind, and [3] the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense.

Defendant conceded that the original condition of the stairway was relevant.

Noting that Defendant had an obligation to preserve the condition of the stairs existed because litigation had begun at the time the stairs were replaced, the Appellate Division agreed with Burke that she met her burden of establishing that Defendant destroyed the stairs with a culpable state of mind.

As Supreme Court had "properly concluded" that Defendant's culpable state of mind was evidenced by its destruction of the stairs during the parties' ongoing debate about whether Burke had to disclose the name of her expert to Defendant before Defendant would agree to the inspection, the Appellate Division said it agreed with Burke that the  imposition of a sanction against Defendant for spoliation of evidence was warranted here.

As to granting Burke partial summary judgment on liability based on Defendant's destruction of the stairway, the Appellate Division, citing Sarach v M & T Bank Corp., 140 AD3d 1721, explained that  in deciding to impose sanctions, and what particular sanction to impose, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness.

Observing that "It is well established that a less drastic sanction than dismissal of the responsible party's pleading may be imposed where [, as here,] the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense ... the record does not demonstrate that [Burke] has been left 'prejudicially bereft' of the means of prosecuting her action." Accordingly, the Appellate Division ruled that "given that [Burke] has in her possession, among other evidence of the condition of the stairs, photographs of the stairs taken after the commencement of this action, "an appropriate sanction is that an adverse inference charge be given at trial with respect to any now unavailable evidence of the condition of the stairs."

In contrast, in some instances the destruction of records will not be deemed to be subject to sanctions for "spoilage."

In Matter of Klikocki (NY Department of Corrections, Mount McGregor), 216 AD2d 808, the Appellate Division decided that evidence Klikocki claimed would be helpful in his defense in a disciplinary action that the employer had destroyed had not been destroyed in an effort to conceal something but rather occurred in accordance with the normal procedure concerning the retention or destruction of certain records after they had been retained for a specified period of time.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04593.htm