Considering a whistle blower defense in the course of a disciplinary action

The appointing authority [Authority] filed disciplinary charges against an employee [Defendant] pursuant to §75 of the Civil Service Law alleging the Defendant was guilty of excessive absence and remaining on the job site against her supervisor’s orders on 76 occasions.

Although Defendant advanced a "whistleblower defense,"* New York City Office of Administrative Trials and Hearings Administrative Law Judge Noel R. Garcia, noting that to establish a “whistleblower” defense the employee must show that the sole motivation for appointing authority's filing the disciplinary charges was to retaliate against the individual, found the Defendant had failed to prove such a defense because, upon review of all of the evidence in the record, Defendant did not establish that the disciplinary charges filed against her were motivated solely by complaints she had filed and that they were factually unconnected to the Defendant’s long periods of absence without leave.

The Administrative Law Judge opined that "much of [Defendant's] testimony regarding the claim of retaliation was uncorroborated, self-serving, and generally not credible." 

Judge Garcia also found that the Authority proved that the Defendant did not provide required medical documentation in connection with Defendant's absence, had refused to meet with her supervisor concerning her absences and had not sought medical treatment until almost four months after she commenced being absent from her position.

As to the penalty to be imposed, Judge Garcia recommended that the Defendant's be terminated from her position.

* Civil Service Law §75-b, which prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting “improper governmental action.”

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-2055.pdf

Covid-19 risks and risk management in New York State’s Capital Area

Dr. Robert Michaels, NYPPL's science consultant, published an article concerning the Covid-19 coronavirus pandemic on ResearchGate titled:

Covid-19 risks and risk management in New York State’s Capital Area. 

Click on https://www.researchgate.net/publication/339956601_Covid-19_Risks_and_Risk_Management_in_New_York_State's_Capital_Area to go to ResearchGate, where Dr. Michaels' article can be read and/or downloaded at no charge. You may email Dr. Michaels at bam@ramtrac.com.

Also, the following was posted on the Internet on March 19, 2020 by the New York State Workers' Compensation Board addressing Job-Protected, Paid Leave Benefits for COVID-19 Quarantine:

Leave for Employee’s Quarantine/Isolation

Governor Cuomo's legislation provides a combination of benefits for eligible employees who are subject to an order of mandatory or precautionary quarantine or isolation issued by the state of New York, the Department of Health, local board of health, or any government entity duly authorized to issue such order due to COVID-19. These benefits vary depending on the size and annual income of the employer.

• Employers with 10 or fewer employees and a net income less than $1 million will provide job protection for the duration of the quarantine order and employees may use Paid Family Leave and disability benefits (short-term disability) for the period of quarantine. These benefits may provide wage replacement up to a maximum combined total of $2,884.62 per week.
• Employers with 11-99 employees and employers with 10 or fewer employees and a net income greater than $1 million will provide at least 5 days of paid sick leave, job protection for the duration of the quarantine order, and employees may use Paid Family Leave and disability benefits (short-term disability) for the period of quarantine. These benefits may provide wage replacement up to a maximum combined total of $2,884.62 per week.
• Employers with 100 or more employees, as well as all public employers, will provide at least 14 days of paid sick leave and guarantee job protection for the duration of the quarantine order.

Leave for Quarantine/Isolation of Employee’s Child

The Governor’s legislation also provides Paid Family Leave for working parents whose minor dependent child is subject to an order of mandatory or precautionary quarantine or isolation. In addition to job protection, eligible employees may receive up to a maximum benefit of $840.70 per week for the duration of the quarantine.

Note: These benefits are not available to employees who are able to work through remote access or other means.

The provisions of the quarantine legislation take effect immediately, ensuring that New York workers will be able to take advantage of these benefits.

Questions?

For more information, visit ny.gov/COVIDpaidsickleave or call the Novel Coronavirus (COVID-19) Hotline at (888) 364-3065.

For more information or to apply for disability benefits and/or Paid Family Leave, visit PaidFamilyLeave.ny.gov/COVID19 or call the Paid Family Leave Helpline at (844) 337-6303

Environmental Contaminants of Emergent Concern

Contaminants of Emergent Concern was discussed by Dr. Robert A. Michaels [bam@ramtrac.com], NYPPL's Environmental Consultant, at the Energy and Environmental Law Section of the New York State Bar Association earlier this year. Dr. Michaels' remarks are posted for viewing and/or downloading at no charge at the following URL:
https://www.researchgate.net/publication/339055672_Legacy_Contaminants_of_Emergent_Concern. 

Other articles addressing environmental issues by Dr. Michaels are posted on on the Internet at: https://publicpersonnellaw.blogspot.com/2020/01/articles-by-dr-robert-michaels-nypers.html

Visualizing 50 Years of Cancer Mortality Rates Across the US

An article by Corresponding Author Isaac H. Michaels, MPH, entitled Visualizing 50 Years of Cancer Mortality Rates Across the US at Multiple Geographic Levels Using a Synchronized Map and Graph Animation has been published in the prestigious journal Preventing Chronic Disease. 

Preventing Chronic Disease is published by the US Centers for Disease Control and may viewed without charge at: https://www.cdc.gov/pcd/issues/2020/19_0286.htm

You may contact Mr. Michaels at imichaels@albany.edu

The anatomy of stating a claim for a reasonable accommodation of an alleged disability

Federal District Court granted the motion to dismiss Plaintiff's action alleging violations of the Rehabilitation Act of 1973* and related state and municipal laws submitted by the New York City Health and Hospitals Corporation, et. al. [NYCHHC] and Plaintiff appealed.

The Circuit Court of Appeal said that the significant questions presented in this appeal are:

(1) whether an employee alleging a failure‐to‐accommodate claim under the Rehabilitation Act has carried his initial burden to make a prima facie case where the employer allegedly has notice that the employee is on extended disability leave, but the employee never requests an accommodation; and 

(2) whether rights established by the Rehabilitation Act are enforceable under 42 U.S.C. §1983. 

The Circuit Court conclude that an employee cannot make a prima facie case against his employer for failure to provide a reasonable accommodation under such circumstances. The court also explained that the rights established by the Rehabilitation Act are not enforceable under 42 U.S.C. §1983. Accordingly, it affirmed the District Court's and dismissed Plaintiff's appeal.

The decision notes that where “the disability is obvious, that is the employer knew or reasonably should have known that the employee was disabled,” the employer is obligated to engage in “an interactive process with their employees and in that way work together to assess whether an employee’s disability can be reasonably accommodated.” 

Although this duty is triggered when the employer knows, or have had sufficient notice such that the employer reasonably should have known, that the employee has a disability within the meaning of the Act in contrast to a having mere impairment, in this instance the District Court concluded that Plaintiff failed to state a reasonable accommodation claim because, by neither responding to the NYCHHC's communications nor appealing its personnel decision, Plaintiff failed to exhaust the administrative remedies available to him.

Plaintiff did not allege that he ever requested an accommodation from NYCHHC, either formally or informally. Although NYCHHC was aware that Plaintiff was on an extended disability leave from work‐related injuries, such knowledge, alone, is insufficient to plausibly allege notice that those injuries constituted a disability within the meaning of the Act as Plaintiff took work‐related disability leave on multiple prior occasions for conditions that did not prevent him from returning to work without any accommodations. 

Finally, noted the Circuit Court, although Plaintiff alleged that NYCHHC received “regular updates from his doctor on his condition and ability to work,” Plaintiff failed to allege facts about the content of those updates "from which it could plausibly be inferred that Plaintiff’s disability was 'obvious' to NYCHHC."

As Plaintiff failed to plausibly allege that NYCHHC knew or should reasonably have known he was disabled, NYCHHC was under no obligation to initiate "the interactive process," and Plaintiff’s failure to affirmatively request an accommodation is a sound basis for dismissal of his complaint. 

* Plaintiff also filed a Title VII complaint [42 U.S.C. §1983] for the same alleged violations he advanced under the Rehabilitation Act.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/c81e66a1-6d73-4cac-bb70-4dcf70ac25db/1/doc/18-2816_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c81e66a1-6d73-4cac-bb70-4dcf70ac25db/1/hilite/

Long, unblemished, service record considered to mitigate harsh disciplinary penalty imposed on employee

A New York City Transit Authority [NYCTA] bus driver [Petitioner] was served with disciplinary charges alleging he had engaged in lewd activity in public. A disciplinary hearing officer found Petitioner guilty of the charges and recommended that Petitioner be terminated. The appointing authority adopted the findings and penalty recommended by the arbitrator and dismissed Petitioner from his position.

Petitioner appealed the penalty imposed by NYCTA but Supreme Court denied Petitioner's motion to vacate the arbitration award. Petitioner appealed the Supreme Court's ruling. and subsequently the Appellate Division vacated the penalty portion of the arbitration award, remanding the matter to the arbitrator for the arbitrator to consider imposing a different penalty.* The Appellate Division explained that the time that incident at issue occurred:

1. Petitioner had been a NYCTA bus driver for 15 years;**

2. Had received consistently positive performance evaluations; and

3. Had never been disciplined.

However, during the second arbitration hearing, held upon remand, Petitioner testified that he had recently pleaded guilty to reckless driving in Ohio, which offense the arbitrator considered in conjunction with the original offense and imposed the penalty of demoting Petitioner to the position of cleaner.

Again Petitioner appealed, challenging the "different penalty" imposed by the arbitrator.

The Appellate Division opined that the revised penalty imposed by the arbitrator was proper and there was sufficient proof to justify the award, which was consistent with the court's earlier directive with respect to the arbitrator considering imposing a lesser penalty on Petitioner.

* See Matter of Fernandez v New York City Tr. Auth., 120 AD3d 407.

** The Appellate Division noted Solis v Department of Educ. of City of N.Y., 30 A.D.3d 532, in which that court found that termination unwarranted for petitioner with "otherwise unblemished 12-year record."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_09087.htm

________________________

A Reasonable Disciplinary Penalty Under the Circumstances
 Determining 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
________________________ 

On March 7, 2020 Governor Andrew M. Cuomo declared a state of emergency to help New York more quickly and effectively contain the spread of the COVID-19

On March 7, 2020, during a briefing on the novel coronavirus, Governor Andrew M. Cuomo declared a state of emergency to help New York more quickly and effectively contain the spread of the virus. The Governor also confirmed 32 additional cases, bringing the statewide total to 76. 

Additionally, the Governor directed the New York State Department of State's Consumer Protection Division to launch an investigation into reports of unfair price increases of consumer products such as household cleaning supplies and hand sanitizer amid the novel coronavirus outbreak, and launched a toll-free hotline - 1-800-697-1220 - for New Yorkers to report suspected price gouging."

The Governor said "As we continue to provide essential updates and encourage people to act upon the facts on coronavirus instead of the hype, I have officially done a declaration of emergency which gives us certain powers to help local health departments that are very stressed. As the local health departments continue to monitor and quarantine people, we have a more expedited purchasing protocol to get them all the tools they need to contain the virus spread. In the meantime we are cracking down on price gouging which continues to be a problem, and I want businesses to be aware that you could lose your license because we are very serious about this."

This state of emergency declaration allows, among other things:

Expedited procurement of cleaning supplies, hand sanitizer and other essential resources;

Allowing qualified professionals other than doctors and nurses to conduct testing;

Expedited procurement of testing supplies and equipment;

Expedited personnel onboarding;

Expedited leasing of lab space;

Allowing EMS personnel to transport patients to quarantine locations other than just hospitals; and 

Providing clear basis for price gouging and enforcement investigation

The 32 new cases identified today are located in New York City and Westchester and Saratoga counties. Of the 76 total individuals in New York State who tested positive for the virus, the geographic breakdown is as follows:

Westchester: 57

New York City: 11

Nassau: 4

Rockland: 2

Saratoga: 2

In addition, the Division of Consumer Protection has also created an online consumer complaint form, where New Yorkers can report suspected price gouging or concerns about improper delivery of quantity. Consumers who wish to file a complaint can visit 

https://www.dos.ny.gov/consumerprotection/. All credible complaints will be referred to the New York State Attorney General's office.

At a briefing yesterday, Governor Cuomo announced travel insurance companies and travel agents will offer New York residents and businesses the ability to purchase coverage when making travel plans that would allow them to cancel a trip for any reason, including for reasons related to COVID-19.

The Department of Financial Services issued guidance allowing travel agents and travel insurers to offer this type of coverage after DFS received consumer complaints that such polices were not available in New York State. This new action is designed to provide reassurance to New York businesses and residents who are seeking to make plans that may involve travel to locations that are not currently under travel advisories due to COVID-19.

Six global and national insurance companies have agreed to offer "cancel for any reason" coverage to travelers, including: Allianz, Nationwide, Starr Indemnity, Berkshire, Crum & Forster, and Zurich. DFS also directed New York State travel insurance issuers to proactively reach out to individuals and businesses who bought their policies to let them know what is covered.

Click on the text in color to read a copy of the DFS Insurance Guidance Letter .