Employee terminate after violating employer zero drug policy

New York City Fire Department [NYFD] filed disciplinary charges against an emergency medical technician [EMT] in its Emergency Medical Dispatch unit [EMD] serving as a "call taker" alleging that EMT violated NYCFD's zero-tolerance drug policy after he had failed a random drug test and a follow-up drug test about administered about month later.

Section 6.1(D) of NYC's Emergency Medical Service Operating Guide "strictly prohibits, among others, the use of illegal drugs that can lead to impairment while on duty" and marijuana is included among its definition of "illegal drugs." Further, NYFD rules provide that for a positive drug test for an illegal drug, the penalty for a first offense is termination.*

New York City's Office of Administrative Trials and Hearings Administrative Law Judge Ingrid M. Addison found no mitigation in EMT’s explanation for his use of marijuana and, in consideration of NYC's zero-tolerance drug policy, recommended EMT’s termination from his employment.

* Although NYCFD rules provide that the penalty to be imposed for a positive drug test for an illegal drug for a first offense is termination, NYFD has occasionally entered into agreements with uniformed members who tested positive for an illegal drug where penalties short of termination were imposed.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1004.pdf

Wearing a hearing aid is a reasonable accommodation under the circumstances

Final order of respondent New York State Division of Human Rights (DHR), dated November 15, 2017, which adopted the recommended order of the Administrative Law Judge, and determined, following a hearing, that petitioner New York State Unified Court System, Office of Court Administration (OCA) discriminated against respondent Jakub R. Zaic based on a disability, and directed petitioner to, inter alia, cease and desist from subjecting individuals to blanket exclusions from the court officer-trainee job title based on hearing loss or the use of hearing aids, pay a civil fine and penalty of $30,000, and pay respondent Zaic $5,000 in compensatory damages, unanimously confirmed, and the proceeding (transferred to this Court pursuant to pursuant to Executive Law § 298 by order of the Supreme Court, New York County [Shlomo Hagler, J.], entered June 8, 2018), dismissed, without costs.

The Commissioner's finding of discrimination is supported by substantial evidence. First, Zaic, currently a per diem court interpreter for OCA in its courts and in other courts, established a prima facie case that OCA discriminated against him on account of his disability of some hearing loss in his right ear (Melman v Montefiore Med. Ctr., 98 AD3d 107, 112-113 [1st Dept 2012]; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 35 [1st Dept 2011], lv denied 18 NY3d 811 [2012]). Zaic sufficiently demonstrated that upon the provision of reasonable accommodation, namely, a hearing aid, he can perform in a reasonable manner the essential functions of a court officer-trainee (Executive Law § 292 [21]; Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881, 883-884 [2013]).

Among other things, Zaic passed the written test for the court officer-trainee position and was conditionally hired. In addition, although the job duties are different, he adequately performed the functions of court interpreter without a hearing aid and without complaints from those who used his services. OCA bans the use of hearing aids on the job or for the audiometric test to medically qualify for the position. Zaic was not obligated to be evaluated for and purchase a hearing aid, and to retake the audiometric test, at his expense, to further make his prima facie case after OCA made clear it still would deem him unqualified and reject such test results.

Permitting court officers to wear a hearing aid is a reasonable accommodation and would not, as OCA argues, impose undue hardship on OCA by posing any "direct threat," i.e. "a significant risk of substantial harm to the . . . safety of the employee or others" (9 NYCRR 466.11[g][2][I]; Executive Law §§ 292[21-e], 296[3][a]; Pimentel v Citibank, N.A., 29 AD3d 141, 145 [1st Dept 2006], lv denied 7 NY3d 707 [2006]). OCA cites only to the physical demands of the job and the speculative risk that a hearing aid could become dislodged in a [*2]scuffle or fail to operate in an emergency. OCA's argument is undermined by its own policy permitting court officer-trainee candidates to meet its vision standard with or without corrective lenses or glasses, which could be lost or become dislodged in a scuffle.

Next, OCA failed to provide any legitimate non-discriminatory reason for its decision. An individual may be denied employment because of a disability only if that condition will prevent him from performing in a reasonable manner the activities involved in the job or occupation sought, based on an individualized assessment of the specific individual (Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 106-107 [1987]). No sufficiently individualized assessment occurred here, nor does OCA's formula take into account the ability of someone with asymmetrical hearing loss to perform the essential functions of a court officer-trainee.

Similarly, while OCA's preference for those with a minimal amount of hearing acuity might be a bona fide occupational qualification (Executive Law § 296[1][d]), its preference for hearing acuity without the use of a hearing aid is not.

Given OCA's blanket policy barring hearing-impaired persons from employment as court officers and its failure to accommodate Zaic who had an asymmetric hearing loss, the civil penalty of $30,000 was correctly assessed (Executive Law § 297[4][c] [a civil penalty below $50,000 may be assessed if an entity is found to have committed an "unlawful discriminatory act").

"Judicial review of an administrative penalty is limited to whether the measure or mode of penalty . . . constitutes an abuse of discretion as a matter of law . . . . [A] penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness'" (Matter of County of Erie v New York State Div. of Human Rights, 121 AD3d 1564, 1566 [4th Dept 2014], quoting Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]; see also Matter of New York State Div. of Human Rights v International Fin. Servs. Group, 162 AD3d 576 [1st Dept 2018]). Further, we have upheld civil penalties if they were "reasonable" (Matter of Framboise Pastry Inc. v New York City Commn. On Human Rights, 138 AD3d 532, 533 [1st Dept 2016]). Here, the civil penalty was not an abuse of discretion. Nor was it was unreasonable.

The record contains substantial evidence to support the Commissioner's finding that Zaic is entitled to a compensatory damages award of $5,000 (Executive Law § 297[4][c][iii]; Matter of Framboise Pastry Inc. v New York City Commn. on Human Rights, 138 AD3d 532, 533 [1st Dept 2016]; see Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 216-217 [1991]; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143, 147 [1974]).

We have considered petitioner's remaining contentions and find them unavailing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01252.htm

Emergency rule making adopted by the State Comptroller addressing processing applications for retirement benefits during the COVID-19 state of emergency

On March 7, 2020 the Governor of New York State declared a state of emergency due to the COVID-19 virus. An emergency adoption of this rule is necessary for the preservation of the general welfare of the members, retirees and beneficiaries of NYSLRS. In order to maintain operation of the retirement system during this state of emergency, it is necessary to authorize the suspension of certain administrative and operational requirements related to the retirement system including, but not limited to, the processing and determination of applications for any form of retirement or benefit, and the conduct and scheduling of administrative hearings. 

Text of emergency rule: 

Add a new Part 383. Section 383.1 Addition or suspension of certain administrative and operational requirements during the COVID-19 state of emergency. 

On March 7, 2020 the Governor of New York State declared a state of emergency due to the COVID-19 virus. An immediate adoption of this rule is necessary for the preservation of the general welfare of the members, retirees and beneficiaries of NYSLRS. Effective immediately and notwithstanding any other law, rule or regulation to the contrary, the Comptroller may authorize the suspension of certain administrative and operational requirements related to the retirement system including, but not limited to, the processing and determination of applications for any form of retirement or benefit, participating employer reporting and the conduct and scheduling of administrative hearings. Such change in administrative and operational requirements will be effective for 90 days from the date of filing of this rule unless such emergency rule is readopted or rescinded prior to the expiration of such ninety day period. This notice is intended to serve only as an emergency adoption, to be valid for 90 days or less. 

N.B. This rule expires June 17, 2020. 

Text of rule and any required statements and analyses may be obtained from: Jamie Elacqua, Office of the State Comptroller, 110 State Street, Albany, NY 122236, (518) 473-4146, email: jelacqua@osc.ny.gov

An administrative decision made in the course of the exercise of discretion is not subject to judicial review

An employee [Petitioner] asked the New York City Administration for Children's Services [ACS] to approve his use of “advanced and extended sick leave” so that he could remain on the payroll during his absence from work. His request was denied and Petitioner initiated a CPLR Article 78 action seeking a court order in the nature of mandamus* requiring ACS to approve his request for such leave.

Supreme Court determined that Petitioner “was barred from compelling ACS to grant his leave request” by means of prosecuting an Article 78 action. The controlling regulations, opined the court,  governing the approval of such types of leave provided that the approval of an employee’s application was at the discretion of the appointing authority. Citing New York Civ. Liberties Union v State of New York, 4 NY3d 175, the court explained that  "mandamus does not lie to enforce the performance of a duty that is discretionary, as opposed to ministerial." Petitioner appealed the Supreme Court’s ruling.

The Appellate Division unanimously sustained the lower court’s decision, noting that ACS's decision was not subject to Article 78 review and Petitioner’s Article 78 action was properly dismissed.

* Latin for "We command." The writ of mandamus is an order from a superior body to an inferior body ordering the inferior body [or an individual] to perform, or refrain from performing, a particular act.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01443.htm

Attempting to withdraw a resignation after filing it with the appropriate individual or body

A Town Attorney [Attorney] sent a letter to the Town Supervisor  "giving notice" that the TA intended to resign from his position "as soon as [his] successor has been identified, and the Town Board is ready to appoint him or her." The Town Supervisor had Attorney's letter  delivered to the Town Clerk, whereupon the Town Clerk "stamped and filed it in the regular course of business." 

Notwithstanding Attorney's letters addressed to the Town Supervisor and the Deputy Town Supervisor "rescinding" his resignation, the Town Board hired a replacement town attorney. 

Attorney initiated an Article 78 action, contending that his resignation was ineffective and thus he had been "improperly terminated from his position as town attorney." The Supreme Court granted the Town's motion to dismiss Attorney's petition, finding [1] that Attorney's resignation was effective and [2] that Attorney never sought the consent of the Town Clerk to withdraw or cancel his resignation, an administrative procedure set out in Public Officers Law §31.4 that was available to him.*

The Appellate Division affirmed the Supreme Court's rulings, explaining that although Attorney's written resignation had been presented to the Town Supervisor instead of the Town Clerk as required by Public Officers Law §31(1)(g) and (2), opining that the relevant provisions of Public Officers Law §31 had been "substantially complied with when the resignation letter was delivered by the Town Supervisor's legislative aide to the Town Clerk, who then filed it in the regular course of business."**

Further, said the Appellate Division, Attorney "never sought the consent of the Town Clerk to withdraw or cancel the resignation," agreeing with the Supreme Court's decision to dismiss the proceeding based on Attorney's failure to exhaust his administrative remedies.

* Subdivision 4 of Public Officers Law §31 provides as follows: "A resignation delivered or filed pursuant to this section, whether effective immediately or at a specified future date, may not be withdrawn, cancelled, or amended except by consent of the officer to whom it is delivered or body with which it is filed." Similarly, 4 NYCRR 5.3(c), which applies to employees of the State as the employer and employees of entities for which the Civil Service Law is administered by the NYS Department of Civil Service, provides that "A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority." 

** See Hazelton v Connelly, 25 NYS2d 74. In contrast, the courts typically rule that the receipt of a withdrawal of a resignation by the appropriate individual or body before the resignation itself is delivered to that entity effectively voids the resignation [see Grogan v Holland Patent CSD, 262 AD2d 1009].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01175.htm

Educator disciplined for violating school policy

The arbitrator's decision has a rational basis and is supported by the evidence (see Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 567-568 [1st Dept 2008]). The record shows that the arbitrator reasonably determined that petitioner was guilty of misconduct when he locked a 10-year old student out of the classroom and left him unsupervised in the hallway. Even if petitioner was justified in removing the student from the classroom, his actions in locking the boy out of the room, in a state of distress, and leaving him in the hallway without adequate supervision violated school policy (see Matter of Asch v New York City Bd./Dept. of Educ., 104 AD3d 415, 419-420 [1st Dept 2013]).

The penalty of a 15-day suspension from employment does not shock our sense of fairness (see Matter of Ghastin v New York City Dept. of Educ., 169 AD3d 507, 508 [1st Dept 2019]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00976.htm

Determining if a dispute between the parties is arbitrable

In this hybrid Article 75 proceeding the Board of Education [Board] sought a court order pursuant to CPLR Article 75 permanently staying an arbitration and for declaratory relief. Supreme Court denied the petition and granted the motion of the Federation of Teachers [Federation] to compel arbitration. The Appellate Division affirmed the Supreme Court's ruling.

Federation had filed a grievance alleging that the Board a term and condition of the collective bargaining agreement [CBA] between the parties by failing to enforce a parking space assignment agreement between the Federation and the Civil Service Employees Association.

The Appellate Division, citing Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 153 AD3d 617, said that "Public policy in New York favors arbitral resolution of public sector labor disputes"  but that a dispute between a public sector employer and a public sector employee organization is only arbitrable if it satisfies a two-prong test.

The first prong of this two-point test to be satisfied is the absence of any statutory, constitutional, or public policy prohibition against arbitrating the grievance.

If the court finds that there is no such prohibition against the arbitration, it must determine if the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

In this instance the Board did not contend that arbitrating the Federation's grievance was barred by law or public policy. Accordingly, the issue to be addressed by the Appellate Division was the Board and Federation did, in fact, agree to arbitrate the particular dispute. To resolve this question the court must determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Recalling that in analogous cases "this Court had held that the arbitration provision of the CBA at issue here is broad,"* Moreover, the Appellate Division concluded that there was "a reasonable relationship between the subject matter of the dispute, staff parking, and the general subject matter of the CBA, including conditions of employment" and affirmed the decision of the Supreme Court.

* See Board of Educ., Yonkers City School Dist. v Yonkers Fedn. of Teachers, 110 AD2d 897, 898-899; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 81 AD2d 585; and Matter of Board of Education of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 49 AD2d 753.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_01343.htm