Claiming exempt volunteer firefighter status for the purposes of Civil Service Law §75.1(b)

Claiming exempt volunteer firefighter status for the purposes of Civil Service Law §75.1(b)

Serviss v Incorporated Vil. of Floral Park, 2018 NY Slip Op 05597, Appellate Division, Second Department

§75.1 of the Civil Service Laws generally bars the termination of a tenured officer or employee in the Competitive Class of Classified Service of the State or a political subdivision of the State "except for incompetency or misconduct shown after a hearing upon stated charges."

The Incorporated Village of Floral Park terminated Joseph Serviss without notice or a hearing. Serviss challenged his termination, contending that although the position from which he had been terminated was in the Labor Class of the Classified Service and employees serving in the Labor Class were generally not subject to the provisions of Civil Service Law §75.1, he was entitled to these protections provided by §75.1 because he served an "volunteer fire fighter with the Rocky Point Fire Department since September 30, 2013," citing  §75.1(b).

§75.1(b), in pertinent part, provides that "a person holding a position by permanent appointment or employment   in  the  classified  service  of  the  state  or  in the several cities,   counties, towns, or villages thereof, or in any other political or civil   division of the state or of a municipality,  or  in  the  public  school   service,  or in any public or special district, or in the service of any  authority, commission or  board,  or  in  any  other  branch  of  public  service,  who  was  honorably  discharged  or  released  under honorable  circumstances from the armed forces of the United States  having  served   therein  as such member in time of war as defined in section eighty-five   of this chapter, or who is an exempt volunteer firefighter as defined in   the general municipal law,  except  when  a  person  described  in  this paragraphholds the position of private secretary, cashier or deputy of  any official or department,...."

In response to Serviss' Article 78 petition challenging the Village's action, the Village  moved pursuant to dismiss Serviss' petition on the basis that it was deficient as a matter of law, contending that "the petitioner failed to allege in his petition that he was an 'exempt' firefighter as defined in General Municipal Law §200." Serviss then asked Supreme Court "for leave to renew his opposition to the Village's motion to dismiss the petition" and in support of that branch of his motion submitted a certificate and supporting documentation in an effort to establish that he was an "exempt" firefighter as defined in General Municipal Law §200.

Supreme Court denied that branch of Serviss' motion, holding that he failed to offer a reasonable justification for failing to submit the certificate in opposition to the Village's motion to dismiss. Serviss appealed from that order.

Addressing the merits of Serviss' appeal, the Appellate Division explained:

1. In general, a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination.

2. The new or additional facts presented "either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion."

3. A reasonable justification' for the failure to present such facts on the original motion must be presented."

Noting that Supreme Court "lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion" the Appellate Division explained that "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation." It then agreed with the Supreme Court's finding that the Serviss failed to offer a reasonable justification for his failure to present the documents relating to his status as an "exempt" firefighter in opposition to the original motion to dismiss.

However there are two procedural elements that must be met by an individual claiming exempt volunteer firefighter status for the purposes of §75.1(b) that should be noted.

1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [see People v Hayes, 135 AD 19]; and

2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [see Badman v Falk, 4AD2d 149]. 

Presumably the courts would apply these two procedural elements in cases involving individuals claiming §75.1(b) military service benefits. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05597.htm

Evaluating the inclusion of "longevity allowance payments" in computing an employee's final average salary for retirement benefit purposes

Evaluating the inclusion of "longevity allowance payments" in computing an employee's final average salary for retirement benefit purposes

Bohlen v DiNapoli,2018 NY Slip Op 05720, Appellate Division, Third Department

In this action Petitioners ask the court to review the Comptroller determination excluding certain compensation from the final average salary in calculating the retirement benefits of 11 long-term, executive level key employees [Petitioners] of the Port Authority of New York and New Jersey [Authority], all members of New York State and Local Employees' Retirement System [System].

After the September 11, 2001 terrorist attack on the World Trade Center that resulted in the destruction of its headquarters, the loss of virtually all of its records and the death of over 70 of its employees, the Authority elected to participate in a temporary retirement incentive program that was passed by the Legislature for employees who were members of the System but advised Petitioners, who were all eligible to retire at that time without penalty, that they would be exempted from the program. Instead, the Authority offered each of them, in addition to their regular salary, a "parity" benefit described as a longevity allowance payment that was based on a percentage of their salary to be paid biweekly, provided that they continued their employment beyond December 31, 2002.

Petitioners each signed memorandum agreements accepting the offer and the Port Authority began making longevity allowance payments to them under what it called an "Employee Retention Program."

In 2012 the System concluded that the longevity allowance payments were not includable  in determining the final average salaries of certain then retiring Petitioners because they were paid "in anticipation of eventual retirement." The System also reevaluated the retirement benefits that were being paid to other of these Petitioners who had earlier retired and came to the same conclusion.

Petitioners challenged the determinations of the Retirement System and requested a hearing. The Hearing Officer found that the System acted reasonably in excluding the longevity allowance payments in computing Petitioners' final average salaries, consistent with the provisions of Retirement and Social Security Law §431. The Comptroller accepted the Hearing Officer's findings and Petitioners initiated a CPLR Article 78 proceeding challenging the Comptroller's decision contending that the longevity allowance payments should have been included in the calculation of their final average salaries.

The Appellate Division agreed with the Petitioners, indicating that:

1. There is no dispute that the 2002 enabling legislation establishing the retirement incentive authorized participating employers to determine which titles would be eligible;

2. The Authority was authorized to determine that Petitioners — all recognized as key employees eligible to retire — would be ineligible for the program;

3. The Authority entered into a memorandum agreement with each Petitioner that provided for a "longevity allowance in consideration of [petitioners] not retiring" (emphasis by the court); and 

4. The "consideration" factor is significant for the Authority was entitled to exclude Petitioners from the retirement incentive without providing any consideration, regardless of whether Petitioners intended to retire at that time.

The memorandum agreement, noted the Appellate Division, indicated that the longevity allowance would make Petitioners' pension calculation "roughly equivalent" to what it would have been under the retirement incentive, provided that they remained employed for three years beyond December 31, 2002. Significantly, said the court, "the additional payments were made on a biweekly basis in the same way as regular salary for services as they were performed."

These payments, in the view of the Appellate Division, "are more appropriately characterized as payments genuinely made to delay [P]etitioners' retirements, not to artificially inflate their final average salary in anticipation of retirement" as they were provided for the primary purposes of [a] retaining key employees following the September 11, 2001 terrorist attack and [b] to adequately compensate Petitioners for their dedication and commitment to remain in their vital positions.

Further, observed the court, there was "neither a lump-sum payment on the eve of retirement nor a disproportionate salary increase designed to artificially inflate a pension benefit that would be properly excluded from the computation of the final average salary."

Although both the System and the Hearing Officer, whose recommendation the Comptroller adopted, characterized the payments as having been made "in anticipation of eventual retirement" (emphasis provided in the decision) the Appellate Division noted that the term "eventual" is not part of the statutory standard and use of the term eventual actually reflects the Comptroller's own recognition that there was no actual retirement date anticipated in the memorandum agreement.

Justice Lynch, in an opinion in which Justices Devine and Pritzker concurred, held that the Comptroller's determination to uphold the System's exclusion of these payments from the computation of Petitioners' pension benefits was not supported by substantial evidence and that the final average salaries of the Petitioners for the purpose of determining their retirement benefits should be recalculated.  Justice Clark wrote a dissenting opinion in which Presiding Justice McCarthy concurred.

These decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05720.htm

Determining the economic damage suffered by a victim of unlawful discrimination

Determining the economic damage suffered by a victim of unlawful discrimination
Rensselaer County Sheriff's Dept. v New York State Div. of Human Rights, 2018 NY Slip Op 05719, Appellate Division, Third Department

The Appellate Division reviewed a determination of the Commissioner of Human Rights' award of damages to compensate Lora Abbott Seabury for the pension benefits that she lost due to the Rensselaer County Sheriff's Department [Respondent] discriminatory actions.*

Lora Abbott Seabury, a former correction officer employed by Respondent filed a complaint with State Division of Human Rights [SDHR] alleging that she had been subjected to, among other things, sexual harassment by male coworkers. After holding a hearing, a SDHR Administrative Law Judge [ALJ] found that Seabury proved that she had been sexually harassed by her male coworkers and recommended that Petitioner be ordered to pay Seabury nearly $450,000 in economic damages and $300,000 in noneconomic damages. The ALJ also recommended that Seabury "should be made whole with regard to her pension."

The Commissioner of Human Rights adjusted the amount of economic damages to approximately $315,000, but otherwise adopted the ALJ's recommendations and, in addition, included an order directing Seabury "to involve" the Office of the State Comptroller and the New York State and Local Retirement System, "presumably [said the court] to have them provide an actual pension to Seabury based on 25 years of service."

The Appellate Division confirmed the determination that Seabury had been subjected to sexual harassment and then remitted the matter to SDHR for the limited purpose of determining the amount of damages that Seabury sustained due to diminishment of her pension benefits, specifically noting that, for the purposes of such a calculation, [1] Seabury's testimony that she planned to work for 25 years was credited, [2] Seabury provided the relevant portions of her collective bargaining agreement and [3] Seabury provided evidence of her wages for the final three full years of her employment, which allows for the computation of her final average salary.**

On remittal, SDHR requested that Petitioner submit documentation demonstrating the monetary award necessary to compensate Seabury for diminution of her pension.

Contending that Seabury was not entitled to any such damages based on the possibility that she would receive disability benefits in an amount greater than the pension that she would have been eligible to receive upon completing 25 years of service, Petitioner submitted a written report from an economist who estimated the total pension benefits that Seabury would have received based on her years of actual service and after 25 years of service. Seabury submitted documentation in rebuttal to Petitioner's submissions, including a written report from an economist who also estimated Seabury's lost pension benefits.

Ultimately the Commissioner ordered Petitioner to pay Seabury $809,507.97 to compensate her for the reduction in her pension that resulted from Petitioner's discriminatory actions.

Petitioner appealed the Commissioner's determination contending that SDHR's calculation of the damages award was both procedurally improper and incorrect while Seabury contended that the damages awarded by the Commissioner did not fully compensate her for the reduction in her pension.

Seabury then requested that Supreme Court either dismiss the petition or transfer the proceeding to the Appellate Division, whereupon Supreme Court transferred the matter to the Appellate Division, resulting in this proceeding.

Explaining that it had remitted explicitly for the limited purpose of requiring SDHR to determine such damages because it had never made an initial determination of such damages, the Appellate Division rejected the Petitioner's claim that SDHR violated the applicable rules of procedure when it afforded both parties the opportunity to make additional submissions on remittal because SDHR was authorized to reopen the record of the proceeding.

The Appellate Division also rejected Petitioner's contention that SDHR erred by failing to reduce the damages awarded for loss of pension benefits to present value. The Court said that although the question of whether the Human Rights Law requires that awards for future damages be discounted to present value is an issue of first impression in the appellate courts of New York, citing Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21, it noted that the Court of Appeals had observed that federal case law is instructive in the employment discrimination context.

Acknowledging that the award for Seabury's lost pension benefits can only be a "rough approximation" of the amount necessary to restore her to the position that she would have occupied had she not been the victim of sexual harassment because neither her lost income stream nor the effect of future price inflation can be predicted with complete confidence, the Appellate Division opined that "One permissible method for approximating damages that arises from a loss of future income - known as the "total offset" method - is to neither consider future salary increases nor discount the damages to present value based on the presumption that future salary increases are offset by the discount rate used to calculate the present value of a damages award."

Thus, said the court, SDHR did not err by adopting the total offset method to determine the value of Seabury's lost pension benefits and confirmed its determination.

* See Executive Law §298.

** Matter of Rensselaer County Sheriff's Dept. v New York State Div. of Human Rights, 131 AD3d 777.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05719.htm

Employer's termination of a biologically male employee transitioning from male to female held unlawful discrimination on the basis of sex

Employer's termination of a biologically male employee transitioning from male to female held unlawful discrimination on the basis of sex

EEOC v R.G. and G.R. Harris Funeral Home., USCA, 6th Circuit, No. 16-2424

Plaintiff, born biologically male, while living and presenting as a man, worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. [Funeral Home], a closely held for-profit corporation.

In an unlawful discrimination complaint filed with the Equal Employment Opportunity Commission [EEOC] Plaintiff alleged that the Funeral Home terminated her* after she had advised the Funeral Home that she intended to transition from male to female and would commence presenting herself and dress as a woman while at work.

In the course of EEOC investigation of Plaintiff's complaint it found that the Funeral Home provided its male public-facing employees with clothing that complied with the company’s dress code while female public-facing employees received no such allowance.

The EEOC subsequently brought suit against the Funeral Home in which the EEOC charged the Funeral Home with violating Title VII of the Civil Rights Act of 1964 [Title VI] by (1) terminating Plaintiff's employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes; and (2) administering a discriminatory-clothing-allowance policy.

In its motion for summary judgment, EEOC argued that it was entitled to judgment as a matter of law on both of its claims.

The Funeral Home, in contrast, contended that it had not violate Title VII by requiring Plaintiff to comply with a sex-specific dress code that it asserts equally burdens male and female employees, and, in the alternative, that Title VII should not be enforced against the Funeral Home because requiring the Funeral Home owners to employ Plaintiff while she dresses and represents herself as a woman would constitute an unjustified substantial burden upon the Funeral Home’s owner's sincerely held religious beliefs in violation of the Religious Freedom Restoration Act [RFRA].

The federal district granted summary judgment in favor of the Funeral Home on both claims.

The Circuit Court of Appeals reversed, holding that:

[1] the Funeral Home engaged in unlawful discrimination against Plaintiff on the basis of her sex; and 

[2] the Funeral Home has not established that applying Title VII’s proscriptions against sex discrimination to the Funeral Home would substantially burden its owner's exercise of their religious beliefs and, therefore, the Funeral Home was not entitled to a defense under RFRA.

Further, said the Circuit court, (a) even if the Funeral Home's owner's religious exercise were substantially burdened, the EEOC established that enforcing Title VII is the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination against Plaintiff and (b) that the EEOC may bring a discriminatory-clothing-allowance claim in this case because such an investigation into the Funeral Home’s clothing-allowance policy was reasonably expected to grow out of the original charge of sex discrimination that Plaintiff submitted to the EEOC.

The Circuit Court issued a judgment to the EEOC on its unlawful-termination claim, and remanded the case to the district court "for further proceedings consistent with this opinion."

* The Circuit Court used female pronouns in its decision in accordance with the preference Plaintiff expressed through her briefing to this court.

The decision is posted on the Internet at:

https://cases.justia.com/federal/appellate-courts/ca6/16-2424/16-2424-2018-03-07.pdf?ts=1520443817