Arbitration award exonerating an employee the employer found guilty of sexually harassing a co-worker overturned as reflecting a "blame the victim" mentality

Arbitration award exonerating an employee the employer found guilty of sexually harassing a co-worker overturned as reflecting a "blame the victim" mentality

New York City Tr. Auth. v Phillips, 2018 NY Slip Op 02442, Appellate Division, First Department

The New York City Transit Authority [Authority] appealed a Supreme Court ruling rejecting its Article 75 petition seeking to vacate an arbitration award.

The New York City Transit Authority had sought a court order vacating a determination by an arbitrator that had set aside the Authority's determination that one of its employees [Harasser] was guilty of sexual harassment of his co-worker and the penalty it had imposed on Harasser -- termination from his position. Supreme Court denied the Authority's Article 75 petition to vacate an arbitration award, confirming the arbitration award and dismissing the proceeding. The Authority appealed the Supreme Court's decision.

The Appellate Division reversed the lower court's decision, on the law, granted the Authority's petition, and the remanded the matter to a different arbitrator to [1] enter a finding that Harasser had subjected a co-worker to inappropriate and unwelcome comments of a sexual nature in violation of the Authority's sexual and other discriminatory harassment policy and [2] to pass upon the appropriateness of the penalty of termination imposed by the Authority on Harasser.

The Appellate Division, in reversing the Supreme Court's ruling,  noted that [1] the arbitrator had "expressly" agreed with the pertinent factual findings set out in the investigation report submitted by the Authority's Office of Equal Employment Opportunity [EEO],* but [2] had nonetheless, "incredibly and inconsistent with his own findings, the arbitrator  ruled that [Harasser's] conduct did not "rise to the level" of sexual harassment."

Further, said the court, "[t]he arbitrator's decision fashions a remedy that violates public policy." Moreover, the award contains language maligning victims in an entirely inappropriate manner, including statements that it was incumbent on the involved co-worker to take appropriate action if she felt Harasser's comments were inappropriate and that such a "blame the victim" mentality inappropriately shifts the burden of addressing a hostile work environment to the employee.

The Appellate Division then opined that the arbitrator's decision belies the realities of workplace sexual harassment. "The fact that the victim did not earlier report [Harasser's] behavior is not atypical and should in no way be construed as absolving [Harasser] of his misconduct" and the arbitrator's decision shifts the onus to the employee to report and fend off the harasser.

Accordingly, explained the Appellate Division, "public policy prohibits enforcement of the arbitration award in this case."

* EEO's report concluding that there was reasonable cause to believe that the Harasser had subjected a co-worker to inappropriate and unwelcome comments of a sexual nature in violation of the Authority's' sexual and other discriminatory harassment policy, which policy defined sexual harassment to include "unwelcome sexual advances and other behavior of a sexual nature when . . . such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02442.htm

Firefighting training for the purpose of developing a firefighter's ability to perform certain activities held not part of firefighting per se

Firefighting training for the purpose of developing a firefighter's ability to perform certain activities held not part of firefighting per se

Sears v City of New York, 160 AD3d 471,

Jamel Sears, a probationary firefighter, died as the result of suffering dehydration while performing the New York City's Fire Academy's physically demanding Functional Skills Training (FST) exercise course, a course designed to simulate actual firefighting tasks under a controlled environment. Sherita Sears submitted a claim for certain benefits pursuant to General Municipal Law §205-a, claim predicated on an alleged violation of Labor Law §27-a,

The Appellate Division ruled that the plaintiff in this action, Sherita Sears, was not entitled to recover under GML §205-a,*as the injuries Jamel Sears had sustained while participating in FST exercises were not the type of occupational injury that Labor Law §27-a** was designed to address.

The court explained that the FST course was "part of training and not part of firefighting per se" and was for the purpose of developing the firefighter's ability to perform certain activities efficiently, which activities were a necessary and important part of their job as it ensures that a firefighter could effectively perform those tasks during an actual fire.

                                         

The Appellate Division opined that the "risks of dehydration and other physiological conditions experienced during FST training are the same as those inherent in actual firefighting. Given the special dangers firefighters face, and their responsibility to protect the public, judgments as to how they should be trained are better left for the FDNY supervisors and not second-guessed by the Department of Labor," apparently a reference to provisions set out in Labor Law §27-a(2)(2) in particular.

* GML §205-a, provides, in pertinent part, an "additional right of action to certain injured or representatives of certain deceased firefighters" in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any fire department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department,

** Labor Law §27-a(2), "Safety and health standards for public employees", provides in pertinent part, that every employer shall "(1) furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees; and (2) comply with the safety and health standards promulgated under this section. In applying this paragraph, fundamental distinctions between private and public employment shall be recognized."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02430.htm

Hamburg employee admits $150,000 theft of recreation fees

Hamburg employee admits $150,000 theft of recreation fees

Source: Office of the State Comptroller

On October 24, 2018 , State Comptroller Thomas P. DiNapoli and Erie County District Attorney John J. Flynn announced that a Village of Hamburg recreation attendant admitted stealing more than $150,000 by skimming village fees and altering public records from 2011 to 2017.

Joanne Erickson, stole cash payments that were meant to fund an after-school program, a children’s summer program and recreation hall rental fees. She allegedly altered cash reports and submitted them to the village and the Recreation Center supervisor. The Comptroller’s office conducted an investigation and audit, discovered the theft and brought the matter to Flynn’s office as part of their ongoing partnership. Erickson was terminated from her $35,000-a-year post by the village in April 2018.

"Little by little, Ms. Erickson systematically defrauded the Hamburg taxpayers of $150,000,” DiNapoli said. “Thanks to the hard work of my office in partnership with District Attorney Flynn, Ms. Erickson has been held accountable.”

“This defendant not only stole from taxpayers, but stole money intended to support programs for children in the Village of Hamburg. I want to thank our partners in the State Comptroller’s Office for conducting this audit, which allowed us to prosecute this individual,” Flynn said.

Erickson, a 14-year village employee, pleaded guilty to grand larceny, false filing and official misconduct. She is due back in court on Jan. 9 for sentencing.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and fraud and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

A correction officer's application for performance of duty disability retirement is to be evaluated to determine if the disability resulted from an act or omission of an inmate

A correction officer's application for performance of duty disability retirement is to be evaluated to determine if the disability resulted from an act or omission of an inmate

Garcia v DiNapoli, 2018 NY Slip Op 06602, Appellate Division, Third Department

A county correction officer [Officer] filed for Retirement and Social Security Law §607-c performance of duty disability retirement benefits claiming he had suffered a  permanently disability as a result of his tripping and falling while descending stairs within the facility in the course of his preparing to move inmates to another location.

Officer's application was denied by the Retirement System on the ground that his alleged disability "was not the result of an act of any inmate" and ultimately the State Comptroller accepted the findings and recommendation of the hearing officer. Officer appealed the Comptroller's determination.

The Appellate Division noted that Officer was [1] required to establish that the alleged incapacity was "the natural and proximate result of any act of any inmate" and [2] had to demonstrate that Officer's claimed injuries were caused by direct interaction with an inmate and were caused by some affirmative act on the part of the inmate." Further, noted the court, the action by an inmate need not to be intentionally directed at the correction officer nor does need to be volitional or disobedient in a manner that proximately causes the officer's injury, but must be more than "a benign chore routinely performed in penal institutions by inmates."  

Officer testified that he daily performs a recreation movement and on the day of the incident he was performing a routine recreation movement in accordance with regular procedures when he heard footsteps behind him, turned around to look, and "saw an inmate right on [his] back" running down the stairs about two steps behind him." Officer then stated the "[u]pon unexpectedly seeing the inmate, [he] became 'scared,' missed a step and grabbed a railing with his arm but continued to fall to the ground, resulting in his injuries."

Officer testified that, although the inmate did not make physical contact with him until assisting him off the ground after he fell, "the inmate should not have been on the stairs at that time," as Officer had not yet given the command to the inmates to descend the stairs. Officer further explained that this incident had never happened before and that "inmates are always required to wait for his command before descending the stairs and entering the recreation yard."

The Appellate Division said that under circumstances it found that Officer had demonstrated that the injuries that he sustained from his fall occurred "contemporaneously with, and flowed directly, naturally and proximately from, the inmate's 'disobedient and affirmative act of descending down the stairs unexpectedly prior to receiving permission to do so.'"

Under these circumstances the court decided that Officer had demonstrated that the injuries that he sustained from his fall occurred "contemporaneously with, and flowed directly, naturally and proximately from, the inmate's disobedient and affirmative act of descending down the stairs unexpectedly prior to receiving permission to do so."

While "losing one's footing — without more — does not constitute an affirmative act," in this instance the Appellate Division concluded that Officer's misstep and fall flowed directly, naturally and proximately from the inmate's act of being out of place without permission and startling Officer by running down the stairs.

The Appellate Division remitted the matter to the Retirement System for further proceedings on the issue of the permanency of Officer's alleged disability

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06602.htm

A retiree not in the collective bargaining unit when he or she became aggrieved may not file a "contract grievance" set out in the collective bargaining agreement

A retiree not in the collective bargaining unit when he or she became aggrieved may not file a "contract grievance" set out in the collective bargaining agreement

Meyer v City of Long Beach, 2018 NY Slip Op 06526, Appellate Division, Second Department

Certain retired police officers [Plaintiffs] sought to recover damages resulting from an alleged breach of the terms and conditions set out in a collective bargaining agreement [CBA] established pursuant to Article 14 of the Civil Service Law [the Taylor Law] from their former employer, the City of Long Beach [City]. Supreme Court denied the City's motion to dismiss the Plaintiffs' petition and the City appealed the Supreme Court's ruling. The Appellate Division affirmed the lower court's decision, with costs.

The facts as reported in the Appellate Division's decision are as follows:

Plaintiffs were members of the Long Beach Patrolmen's Benevolent Associations [PBA], when the relevant CBA between the City  and the PBA expired. Efforts to negotiate a successor CBA failed and ultimately an arbitration award resulting from "compulsory interest arbitration," which allegedly had the statutory effect of becoming the successor CBA to the expired CBA for those members covered by the award, was issued.

The Plaintiffs here, however, had retired prior to the issuance of the arbitration award and although Plaintiffs claimed that the arbitration award applied to them, the City contends that it does not and refused to give them certain compensation mandated by the award.

The City argued that:

[1] the doctrine of collateral estoppel bars Plaintiffs from bringing this action, citing the decision in an improper practice charge filed by the Commanding Officers Association of Long Beach, New York, Inc. [COA] against the City with the New York State Public Employment Relations Board [PERB]. In that action  PERB determined that the City did not violate Civil Service Law §209-a(1) by refusing to allow COA members to share in the arbitration award; and

[2] Plaintiffs' failed to pursue the grievance procedure set out in the CBA established by the award bars their lawsuit seeking to recover damages for the alleged breach of contract.

With respect to the City's reliance on the doctrine of collateral estoppel, the Appellate Division said that the issue raised in Plaintiffs' action is not identical to the issue litigated in an improper practice charge filed by COA against the City before PERB and PERB's determination that the City did not violate Civil Service Law §209-a(1) by refusing to allow COA members to share in the arbitration award did not determine whether the benefits set forth in the arbitration award applied to the Plaintiffs, who were never members of the COA. Thus, said the court, doctrine of collateral estoppel is inapplicable to that issue.

As to the City's claim that Plaintiffs' failed  to pursue the grievance procedure set out in the successor CBA, the Appellate Division said that this failure "does not warrant dismissal of the cause of action to recover damages for breach of contract" as "the CBA limits invocation of the grievance procedure outlined therein to 'bargaining unit member[s].'" The court explained that as retired employees of the City, Plaintiffs were not members of the collective bargaining unit when they became aggrieved and thus they could not have pursued the grievance procedure set out in the CBA that the City claimed was available to them.

The Appellate Division's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06526.htm

Court of Appeals' decision addresses the concept of the separation of powers and the legislature's delegating rule making authority to a state department or agency

Court of Appeals' decision addresses the concept of the separation of powers and the legislature's delegating rule making authority to a state department or agency

LeadingAge N.Y., Inc. v Shah, 2018 NY Slip Op 06965, Court of Appeals

The Court of Appeals' ruling in LeadingAge, et. al., [Proceeding No. 1.] and Coalition of New York State Public Health Plans, et al., Proceeding No. 2.] explores the concept of separation of powers in the context of the State legislature's delegation of certain rule making powers to the New York State Department of Health, an executive administrative agency [EAA].

The Court of Appeals observed that:

1. An EAA rule or regulation grounded in the statutory mandate must not usurp the Legislature's role;

2. An EAA rule or regulation [a] must be promulgated in consideration of, among other things, findings resulting from research and public comment, [b] have defined thresholds and exclusions, if any, and [c] decisions involving the application of rules and regulations by an EAA must be rational; and

3. An EAA may not promulgate rules or regulations reflecting ideas and policies that are inconsistent with effecting "legislative intent" as set out in the statute.

The Court of Appeals noted that the concept of the separation of powers is "the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions." The concept also requires that the Legislature make the critical policy decisions, while the executive branch may be delegated with responsibility to implement those policies.*

The court explained that an EAA, as a creature of the Legislature, acts pursuant to specific grants of authority conferred by their creator. In effect, a legislative body may enact a general statute that reflects legislative policy and, or, intent and then grant authority to an EAA to promulgate and enforce rules and regulations that "expand upon the statutory text by filling in details consistent with that enabling legislation," i.e., promulgating rules and regulations reflecting the legislative body's intent. In the event an EAA promulgates a rule or regulations beyond the power granted to it by the legislature, the EAA is said to have acted "ultra vires"** and usurped the legislature's role thereby violating the doctrine of separation of powers.

In other words, the separation of powers doctrine requires that the legislature make the primary policy decisions while the EAA, in the exercise of its technical expertise, may be vested with considerable discretion to flesh out a policy broadly outlined by legislators in order to implement the legislature's "primary policy decisions."

The Court of Appeals then indicted that to attain this result in promulgating rules and regulations, an EAA may rely on a general but comprehensive grant of regulatory authority to determine the best methods to attain the objectives articulated by the legislature and "because it is not always possible to draw a clear line between the functions of the legislative and executive branches," common sense must prevail when determining whether an EAA has acted within its grant of authority delegated to it by the legislature.

If the court finds that the EAA has been empowered to regulate the matter in question and has not usurped any of the legislative body's prerogative, judicial review of the separation of powers inquiry is at a judicial end as it is not the court's role to question the efficacy or wisdom of the means chosen by the EAA to accomplish the ends identified by the legislature as it is the court's role to determine whether the agency acted within the scope of the authority delegated to it even if believes there are alternative and better means of effecting the legislative body's intent.

Should the court finds that the EAA meets this initial test, i.e., it has acted within the scope of the powers delegated to it by the legislature, it still may be necessary for the court to adjudicate another issue: are the rules, regulations and procedures adopted by the EAA to effect the legislative intent arbitrary and capricious?

* In Schechter Poultry Corp. v. United States, 295 U.S. 495, the United States Supreme Court held that Congress violated the "nondelegation doctrine" by granting certain rule-making powers to a non-governmental entity under color of Article 8 of the Commerce Clause of the Constitution of the United States which vests in Congress the "power to regulate commerce...."

** Acting beyond one's or an entity's legal power or authority.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06965.htm