The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

Castro v Safir, 291 A.D.2d 212

An employee may elect to retire from his or her position when charges of incompetency or misconduct have been, or are about to be, filed against the individual.

4 NYCRR 5.3(b), which applies to officers and employees of the State as the employer in the Classified Service and employees of certain other public entities, provides, in pertinent part, that "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Many local civil service commission and county personnel officers have promulgated a local law, rule or regulation similar to 4 NYCRR 5.3(b).

In certain situations an individual who seeks to retire after he or she is terminated from his or her position as the result of being found guilty of disciplinary charges may find that he or she has forfeited the pension portion of his or her retirement allowance to which he or she may have otherwise been entitled.*

In Castro, the basic issue involved the result of his disciplinary termination from his position prior to the effective date of his retirement. If he had been lawfully so dismissed from the position, any pension benefits to which he would have otherwise been entitled would be forfeited pursuant to §13-173.1 of the New York City Administrative Code.**

Castro sued the Department contending that it had terminated him in bad faith in order to frustrate his eligibility for pension benefits as the New York City Employees' Retirement System's Medical Board had earlier found Castro eligible for ordinary disability retirement.***

The Appellate Division ruled that Castro had forfeited his pension benefits as he had been dismissed from his position for cause before he effective date of his retirement on ordinary disability and thus he was not in service on the effective date of his retirement, a ruling  consistent with the Court of Appeals' holding in its Waldeck and Barbaro rulings.

In Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System, the Court of Appeals said that §13-173.1 provides that an employee's disciplinary termination prior to effective date of his or her voluntary resignation results in a forfeiture of his or her eligibility for pension benefits.

Sometimes a disappointed retiree, as did Castro, alleges his or her termination constituted the employer acting in bad faith.

In Cipolla v Kelly 26 A.D.3d 171, the Appellate Division held that “The fact that [the individual] was about to retire, or that [the individual] ultimately settled the criminal charges by pleading to a violation, does not demonstrate [that the individual’s] termination [from his or her position was made] in bad faith.”

* The decision in Blair v Horn, 2008 NY Slip Op 32581(U), not selected for publication in the Official Reports, suggests that a court could deem a retirement to be the equivalent of a resignation within the meaning of 4 NYCRR 5.3(b) [See  http://www.nycourts.gov/reporter/pdfs/2008/2008_32581.pdf].

** §13-173.1 requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her pension benefits.

*** According to the decision, Castro was terminated from his position after he had applied for ordinary disability retirement but before he was actually retired for disability.

The Castro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_00697.htm

Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

OATH Index No. 1767/17

A New York City Division of Housing housing inspector, whose duties included inspecting private and multiple dwellings for safety and "illegal conversions in cellars" was served with disciplinary charges alleging that he had [1] unlawfully converting the cellar of his two-family residence into single rooming units; [2] unlawfully installing kitchen and plumbing fixtures in the cellar space and [3] his failure to advise his employer of his ownership of his residence constituted a conflict of interest.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls found that the inspector had, indeed, unlawfully converted his cellar into rooming units, which he rented to tenants. Further, the ALJ noted that the rooms were unsafe because "they lacked the required means of egress."

Finding that the inspector's conduct showed disregard for the housing and safety standards he was charged with enforcing and was in violation of the public trust, Judge McGeachy-Kuls recommended that the inspector be terminated from his employment with the Division of Housing.

Also noted was a procedural element that the ALJ had to address. The inspector's employer called [the inspector as a witness] and asked him if "he had been arrested for violations at the subject premises." The inspector declined to answer the question invoking his Fifth Amendment right not to provide information that might be incriminating.*

The Division of Housing asked Judge McGeachy-Kuls that she "draw an adverse inference from the [inspector's] refusal to answer questions. The inspector then "stipulated to the admission of the criminal complaint filed against [him] citing violations at the subject premises."

Under the circumstances the ALJ said that she found it "unnecessary to draw an adverse inference."

* At the time of this disciplinary hearing was held criminal charges filed against the inspector were still pending.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1767.pdf

Complying with administrative procedural requirements prior initiating litigation seeking information pursuant to the Freedom of Information Law

Complying with administrative procedural requirements prior initiating litigation seeking information pursuant to the Freedom of Information Law

Empire Ctr. for Pub. Policy, Inc. v N.Y.C. Off. of Payroll Admin., 2018 NY Slip Op 01143, Appellate Division, First Department

Supreme Court granted the Empire Center for Public Policy's CPLR Article 78 petition seeking to compel the New York City Office of Payroll Administration [Administration] to disclose certain information it had requested pursuant to the Freedom of Information Law [FOIL]. The court also referred the matter to a special referee to hear and report on the appropriate amount of attorney's fees to be awarded to the Center.

The Appellate Division unanimously reversed Supreme Court's ruling "on the law" without costs and dismissed the Center's Article 78 petition.

The Appellate Division noted that the Center and Administration had corresponded regarding Administration's attempt to comply with the Center's request. Administration indicated it would not be able to compile the date requested until October 2015. On November 5, responding to the Center's inquiry concerning Administration's failure to yet provide all the data it had requested, Administration ask Center for an additional 20 days to provide the requested data.

Acknowledging that in South Shore Press v Havemeyer, 136 AD3d 929, it was held that a failure to provide an approximate date when a petitioner's FOIL request would be granted constituted a constructive denial, the Appellate Division ruled that here the Center's appeal was premature as Administration had not constructively denied the Center's FOIL request in that Administration had provided "most of the information" by November 18."

The Appellate Division, conceding that a custodian of a public record's failure to provide an approximate date when a FOIL request would be granted constituted a constructive denial, found that the Center "did not file an administrative appeal from [the Administration's November 18 response] and thus the Center failed to exhaust its administrative remedies before commencing its Article 78 action.

The decision notes that in Taylor v NYC Police Department, FOIL Unit, 25 AD3d 347, [leave to appeal denied 7 NY3d 714], despite the FOIL Unit's untimely response to Taylor's FOIL request, Taylor improperly institute an Article 78 action "without first taking an administrative appeal" challenging the untimely response to his FOIL request.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01143.htm

Employer advanced good faith reasons supporting its decision to terminate a probationary employee

Employer advanced good faith reasons supporting its decision to terminate a probationary employee

Cooper v City of New York, 2018 NY Slip Op 01240, Appellate Division, First Department

Supreme Court annulled the New York City Department of Education's determination terminating probationary employee John Cooper's from his position. The Appellate Division reversed the lower court's ruling "on the law."

The Appellate Division held that Cooper failed to establish that he was terminated in bad faith in view of the record demonstrating that his performance during his probationary period was unsatisfactory.

On the contrary, said the court, "the record demonstrates that [the New York City Department of Education] had a good faith reason for its determination" in that there were issues with Cooper's leadership, communication, and project management skills, which not resolved despite Cooper's supervisor's repeated advice that he needed to improve and her efforts to assist him.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01240.htm

Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday February 23, 2018

Click on text highlighted in color to access the full report.

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Employee fired for violating workplace violence policy, not for PTSD

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Federal whistle blower protection against retaliation is not triggered unless the individual complies with the procedures set out in the controlling federal law, rule or regulation

Federal whistle blower protection against retaliation is not triggered unless the individual complies with the procedures set out in the controlling federal law, rule or regulation

Digital Realty Trust, Inc. v. Somers, USSC, No. 16-1276

Both the Sarbanes-Oxley Act of 2002, typically referred to as the Sarbanes-Oxley Act and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, generally referred to as the Dodd-Frank Act, shield whistle blowers from retaliation by their employer for "whistle blowing" but they differ in important respects.

Sarbanes-Oxley applies to all "employees" who report misconduct to the Securities and Exchange Commission [SEC], any other federal agency, Congress, or an internal supervisor [see 18 U. S. C. §1514A(a)(1)].

In contrast, Dodd-Frank defines a "whistle blower" as any individual who provides . . . information relating to a violation of the securities laws to the SEC, in a manner established, by rule or regulation, by the SEC [see, generally, 15 U. S. C. §78u– 6(a)(6)].

Paul Somers alleged that his employer, Digital Realty Trust, Inc., [DRT] terminated him shortly after he reported suspected securities-law violations by the company to senior DRT management. Somers then initiated litigation against DRT, contending that he had been terminated in retaliation for his "whistle blowing" in violation of Dodd-Frank.

DRT asked the court to dismiss Somers lawsuit contending that Somers was not a whistle blower within the meaning of 15 USC §78u-6(h) because he failed to alert the Security and Exchange Commission of the suspected violations of Dodd-Frank prior to his termination.

The District Court denied the motion, and the Ninth Circuit affirmed. The Court of Appeals concluded that §78u-6(h) does not necessitate recourse to the SEC prior to gaining "whistle blower" status, and it accorded deference to the SEC's regulation, citing Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837.

The Supreme Court reversed, holding that the Dodd-Frank anti-retaliation provision does not extend to an individual who, like Somers, had not reported a violation of the securities laws to the SEC prior to his or her termination from his or her employment.

The court explained that "When a statute includes an explicit definition, [the court] must follow that definition ...."An individual who falls outside the protected category of “whistle blowers” as defined in the law, rule or regulation is ineligible to seek redress regardless of the conduct in which that individual has engaged. 

With respect to officers and employees of New York State as an employer and its political subdivisions, §75-b of the Civil Service Law provides as follows:

"2. (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 discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. "Improper governmental action" shall mean any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation" [emphasis supplied].

In Ringle v Onondaga County, 267 AD2d 1088, in determining Ringle’s and Sawyer’s rights under Section 75-b of the Civil Service Law, the Appellate Division noted that alleged violations of Section 75-b are typically challenged by the individual bringing an Article 78 action [Article 78, Civil Practice Law and Rules].* 

In filing such a petition, said Appellate Division, the individual seeks to vindicate a private rather than a public right. What private right? The right not to be dismissed or otherwise subjected to reprisals because of his or her disclosures to other governmental agencies of the media.

This conclusion meant that both Ringle and Sawyer had fallen into a procedural trap.

The Appellate Division said that because the “Civil Service Law Section 75-b causes of action Ringle and Sawyer brought sought to vindicate only their individual interests their claims were properly dismissed by the lower court because neither had filed a notice of claim as required by Section 50-a of the General Municipal Law Section and Section 52 of the County Law.**

In addition, the court pointed out that Section 75-b does not serve as a shield against disciplinary action being taken against an employee where there is a “separate and independent basis” for discipline the individual.

Finally, the Appellate Division observed that “by commencing actions pursuant to Civil Service Law Section 75-b, Ringle and Sawyer are barred from asserting any other State law cause of action related to the alleged retaliatory discharges.”

* In contrast, in DiGregorio v MTA Metro-N. R.R., 140 AD3d 530, the court ruled that 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.

** This ruling implies that where an individual sues a school district or BOCES claiming he or she was dismissed or subjected to punitive action in violation of Section 75-b, he or she must file a notice of claim in accordance with Section 3813(1) of the Education Law. 

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/17pdf/16-1276_b0nd.pdf