Threatening an employee with disciplinary action if he does not resign from his position

The plaintiff [Petitioner] brought an action in federal district court alleging that the Town of East Haven, Connecticut [Town] discriminated against her because of her age in violation of the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. §§621‐634, and Connecticut state law.

The federal district court granted Town's motion for summary judgment on the sole ground that Petitioner had failed to make out a prima facie case of any adverse employment action because Petitioner chose to retire rather than attend a scheduled disciplinary hearing. This,  in the words of the U.S. Circuit Court of Appeals, Second Circuit, was "the only merits‐based challenge presented in the Townʹs summary judgment motion."

Petitioner appealed the district court's ruling contending that the court erred in failing to view her evidence that her retirement was not voluntary but was coerced by the threat of likely termination as the result of a disciplinary action undertaken by Town against her and thus constituted a constructive discharge.

The Circuit Court agreed, holding that viewing the evidence in the light most favorable to Petitioner sufficed to present genuine issues of fact "as to whether a reasonable person in Petitioner's shoes would have felt compelled to retire." Again, in the words of the Circuit Court, "If this case were tried, a factfinder, applying the correct legal standard to the issue of constructive discharge, could rationally find that an employee in [Petitoner's] shoes would have felt compelled to submit her resignation stating that she was retiring, rather than face nearly certain termination."

The Circuit Court vacated the district court's judgment and remanded the matter to the lower court for further proceedings.

In Rychlick v Coughlin, 99 A.D.2d 863, aff'd 63 NY2d 643, the Appellate Division opined that threatening to do what the appointing authority has a right to do – in this instance filing  disciplinary charges against Rychlick if he refused to resign from his position -- did not constitute coercion so as to make Rychlick’s resignation involuntary. 

Further, 4 NYCRR 5.3(b), which applies to officers and employees of the State as the employer, in pertinent part provides 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 jurisdictions in New York State have adopted a similar rule or regulation.

The Circuit Court of Appeal's decision is posted on the Internet at:

https://www.leagle.com/decision/infco20200310084

Determining the beneficiaries of a retiree's death benefit

The retiree [Decedent], a member of the New York City Employees' System, [CERS] retired in March 2016. On November 21, 2016, Decedent submitted a notarized retirement option election form to CRES in which she designated the Plaintiff [Beneficiary 1] in this action as the beneficiary of the death benefit payable by CRES to her designated beneficiary. 

On November 25, 2016, Decedent submitted a second form to CERS designating two different individuals, Beneficiary 2 and Beneficiary 3, to receive her CERS death benefit. 

Decedent died on December 16, 2016.

On March 1, 2017, Beneficiary 1 appeared in person at the CERS customer service center and filled out a request for information form seeking the identity of Decedent's death benefit beneficiary. NYCERS mailed a letter dated March 22, 2017 to Beneficiary 1 stating that Beneficiary 2 and Beneficiary 3 were the beneficiaries of Decedent's death benefit. On March 27, 2017 Beneficiary 1  returned to the CERS customer service center and submitted a letter to CERS demanding that CERS halt the distribution of any monies attributed to Decedent's death benefit to Beneficiary 2 and, or, Beneficiary 3. 

CERS subsequently sent a letter dated March 30, 2017 to Beneficiary 1 stating that the death benefit would be paid to Beneficiary 2 and Beneficiary 3 because the last notarized retirement option election form that CERS received from the Decedent designated them as the beneficiaries of Decedent's death benefit.*

In December 2017, Beneficiary 1 initiated an action pursuant to CPLR Article 78, "in the nature of mandamus"**  seeking a court order compelling CERS to pay the Decedent's death benefit to her. CERS and Beneficiary 2 separately moved to dismiss the petition as time-barred.

Supreme Court, in effect granting the motions submitted by CERS and Beneficiary 2, denied Beneficiary's 1 petition, and dismissed the proceeding, explaining that the CERS letter dated March 30, 2017, was a final determination which was mailed to the address provided by Beneficiary 1 and, accordingly, her CPLR petition was untimely under the controlling four-month statute of limitations which began to run "after the [CERS] refusal" to comply with  Beneficiary's 1 request that CERS discontinue distribution of any monies to Beneficiary 2 and, or, Beneficiary 3.  Beneficiary 1 appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division sustained the lower court decision, observing that CERS' letter dated March 30, 2017, was an unequivocal refusal to comply with Beneficiary 1's  demand, which constituted a final determination by CERS for the purposed of the determining the date on which the statute of limitations commenced to run. As that letter was mailed to the address indicated on the New York State Identification Card that Beneficiary 1 provided as proof of her identification at the time of her demand, which, said the court, CERS had every right to rely upon as Beneficiary 1's correct address. Further, CERS did not receive any notice that the letter dated March 30, 2017 it mailed to Beneficiary 1 was returned to it as undeliverable.

Accordingly, the Appellate Division stated that it agreed with the Supreme Court's determination granting the separate motions of CERS and B2 to dismiss Beneficiary 1's CPLR Article 78 petition as untimely and dismissing the proceeding.

* In disputes such as these the Retirement System typically takes the position that it is merely a "stakeholder" and "awaits the court's order instructing payment" in the event its decision is challenged.

** The writ of mandamus is one of number of the ancient “common law” writs and is granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other writs include the writ of prohibition – a writ issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03016.htm

Proper service on a necessary party is critical to satisfying jurisdictional requirements

The employee in this action [Petitioner] submitted two appeals to the Commissioner of Education challenging her School District employer's changing her full-time position to a part-time position. Ultimately the Commissioner consolidated the two appeals and dismissed them, finding that they were both procedurally and substantively deficient. Petitioner then commenced a CPLR Article 78 proceeding against, among others, the Commissioner and the Department of Education [State].

The State move to dismiss the action, advancing the affirmative defense of lack of personal jurisdiction due to defective service. Supreme Court determined that Petitioner had failed to properly serve the State and that, inasmuch as the Commissioner was a necessary party, "the failure to obtain personal jurisdiction over her warranted dismissal of the proceeding in its entirety." Petitioner appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division explained that although Petitioner had effectuated service upon the Commissioner and the Department of Education, that service was jurisdictionally defective inasmuch as Petitioner failed to also "serve a copy of the notice of petition on the Attorney General's office as required by CPLR §7804 (c)." Observing that the Commissioner, at a minimum, was a necessary party given that the proceeding was commenced to challenge the Commissioner's determination, the court said that contrary to Petitioner's contention, "her pro se* status and the Attorney General's actual awareness of the proceeding" did not serve to cure or excuse Petitioner's failing to serve necessary parties.

Finding that Supreme Court properly concluded that the failure to obtain personal jurisdiction over the Commissioner warranted dismissal of the Article 78 proceeding in its entirety, the Appellate Division affirmed the lower court's ruling.

* Latin: A term use to describe a litigant representing himself or acting on his own behalf in a civil action. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02834.htm

COVID-19 and Workers' Compensation - Questions and Answers posted by the NYS Workers' Compensation Board

The New York State Workers Compensation Board has published a COVID-19 and Workers’ Compensation "Questions and Answers" document to answer questions about workers’ compensation benefits available to employees who get infected by COVID-19 while on the job.

The document is posted on the Board’s website and its content is outlined below.


EMPLOYEES: If you believe you became ill with COVID-19 due to your work, you should tell your employer as soon as possible, file an Employee Claim (Form C-3) with the Board, and see a doctor to obtain a diagnosis. For more details, please see the How Do I File a Claim? section below.

EMPLOYERS: If a worker reports that they are sick due to a workplace exposure, you must contact your workers’ compensation insurance carrier immediately. The insurance carrier then has 18 days to act on the claim and must begin paying benefits within this time frame if the claim is accepted. Please share this information with your employees.

Can I receive workers’ compensation benefits if I get COVID-19 while working?

Yes. Depending on the facts, you may receive workers’ compensation benefits in New York State due to COVID-19 exposure. Employers must carry workers’ compensation insurance to pay benefits to workers who are made ill or injured due to their employment. This is known as a work-related illness or injury. Immigration status is not a factor.

For over a century, the New York State Workers’ Compensation Board (Board) has responded to outbreaks and chronic injuries by ensuring that claims are handled quickly and benefits are paid promptly. From diseases like tuberculosis and asbestosis, to the tragedy of 9/11, and to the opioid crisis, the Board has always risen to meet the needs of injured workers across the state. COVID-19 is no exception.

What happens if I file a claim?

Your claim will be reviewed by your employer’s workers’ compensation insurance carrier. If the insurance carrier accepts the claim, your COVID-19 claim will be payable (known as compensable). If the carrier disputes the claim, a judge at the Board will decide whether the claim should be paid. The judge will listen to your testimony and the testimony of your medical provider to get the facts about where you work, whether you were exposed to COVID-19, the extent of your exposure, and whether exposure to COVID-19 was prevalent in your work environment.

What benefits are available?

The Worker’s Compensation Law provides for:
Payment of an injured worker’s medical treatment for a work-related illness or injury.
Wage replacement benefits if your illness prevents you from working.
Benefits to an employee’s surviving dependents in the event of death.
Reimbursement of funeral expenses up to $12,500 in New York City, Nassau, Suffolk, Rockland, and Westchester counties, and up to $10,500 in the other counties of New York.

Which work environments are more likely to result in COVID-19 claims?

Individuals who work in an environment where exposure risks are significantly higher are more likely to have compensable COVID-19 claims. Some employees are working closely with the public in locations where COVID-19 exposure is documented. This includes health care workers, first responders, transportation workers, corrections officers, and food service workers. Some workers may also have work-related claims if they directly interact with the public while working, such as retail workers.

What information is needed to show that a COVID-19 claim is work-related?

Most workers will never be able to point to the moment or method of exposure to COVID-19, but workers can demonstrate the significantly elevated risk in their workplace by demonstrating the nature and extent of their work in an environment where exposure to COVID-19 was prevalent. You should provide details about where you work, how often you work, and the type of job duties you perform, especially those involving contact with the public. You need to have a medical report, from an authorized workers’ compensation medical provider, stating that your work caused your illness. A positive test result is best, but a medical report, from an authorized workers’ compensation medical provider, showing a diagnosis via PCR test, or by virtue of an examination by a treating physician, may be used.

How do I file a claim?

Tell your employer, as soon as possible, that you are sick. Tell your employer in writing, via email or handwritten or typed letter. Do not send a text message, if you can avoid it.

Fill out the Employee Claim (Form C-3) and send it to the Board. You can file the form online, or mail the paper form to the address listed.

See a doctor authorized to treat workers’ compensation patients when you can. You can now do so via video or telephone. You can search for a Board-authorized doctor at wcb.ny.gov.

Tell the workers’ compensation doctor who treats you that you believe you contracted COVID-19 while at work. If your doctor agrees, the doctor will send the report to the insurance company and the Board.

If the doctor has your positive COVID-19 test result, the doctor should send that in. If you have the positive test result, either give it to your doctor or send a copy of it to the Board with your claim form.

How long does the process take?

When you tell your employer that you are ill due to your employment, your employer should immediately inform its insurance carrier. The insurance carrier has 18 days to act on the claim and begin paying benefits if it accepts it. As claims are received, the Board will make every effort to process those claims as quickly as possible. The Board holds hearings on disputed issues, when necessary, to ensure that benefits are promptly paid to affected workers, allowing them to pay their bills and continue supporting their families.

Is help available?

You can call the NYS Workers Compensation Board at (800) 580-6665 if you’re having difficulties or need information. Please let us know if you face resistance or obstacles to getting information about the claims process or are discouraged from filing a claim. We will help you. You can also write to AdvInjWkr@wcb.ny.gov.

The Chair of the Workers' Compensation Board has sent a letter to all insurance carriers, encouraging them to be helpful to workers, and to investigate and pay claims as quickly as possible.


For more information:

This document and other COVID-19 resources are available on the WCB Information Related To Novel Coronavirus (COVID-19) webpage.

Audits by New York State Comptroller Thomas P. DiNapoli issued during the week ending June 5, 2020

New York State Comptroller Thomas P. DiNapoli announced the following local government audits were issued during the week ending June 5, 2020. 

Click on the text typed in color to access the full text of the audit.

Office of Addiction Services and Supports (OASAS): Oversight of Drug Disposal (2018-S-64) Overall, OASAS addiction treatment centers and OASAS-certified providers have met the regulatory requirements for collecting and disposing of unneeded drugs. However, there are improvement opportunities in some of their pharmaceutical management practices. While some of the sampled providers had effective controls over the drug disposal process, which followed the regulations and were environmentally friendly, others did not use environmentally sound methods of disposal whenever possible.

Division of State Police: Processing of Sexual Offense Evidence Collection Kits (2019-S-44) From Nov. 28, 2017 to Oct. 31, 2019, the state police processed 1,656 kits. Only 356 of the 1,656 kits (21 percent) were completed within the time frames prescribed by law. As of Oct. 31, 2019, state police had 1,916 kits that needed to be processed, and as of that date, the required processing time frame had elapsed for 1,681 kits (88 percent).

Department of Taxation and Finance: Collection of Petroleum Business Tax and Motor Fuel Excise Tax (2018-S-28) Diesel and motor fuel distributors may be required to provide collateral security in an amount provided for in statute or determined by the department. Distributors whose combined tax liability exceeds $5 million for the department’s reference period must enroll in its PrompTax electronic filing and payment program and prepay a portion of each month’s tax liability. Auditors found the department does not review distributors’ existing collateral security amounts to determine if they continue to be appropriate and identified distributors that were not enrolled in PrompTax and were not prepaying their tax liability as required.

Office of Temporary and Disability Assistance: National Directory of New Hires Data Security (2019-S-67) The office has taken actions to comply with the federal requirements for securing directory data. Auditors found that the office is fully compliant with 30 of the 32 requirements; the remaining two requirements were found to be not applicable.

Islip Fire District – Financial Condition (Suffolk County) The board did not effectively monitor expenditures and fund balance. As a result, the unrestricted fund balance deficit increased to as much as $171,492 during the audit period. Auditors also determined that the board did not properly plan for the funding of and spending from reserves. In addition, the board transferred unavailable funds to its capital reserves, and expended funds from reserves without adequate public notice; for example, transfers to reserves totaling $593,941 and expenditures from reserves totaling $841,477 that were not included in the budgets.

Sodus Center Fire District – Board Oversight (Wayne County) The board maintained a lax control environment and did not carry out its responsibility to oversee district financial operations and safeguard district assets. Auditors determined that the board allowed the treasurer to perform all key aspects of district financial operations without providing independent oversight.

City of Long Beach – Budget Review (Nassau County) Significant revenue and expenditure projections in the proposed budget are reasonable.      

Although the city appears to have budgeted sufficiently for termination salary payments for the 2020-21 fiscal year, auditors caution the city that its continued practice of borrowing to fund these operating costs is not fiscally prudent. The city has improved its projections for overtime costs in certain departments. However, it does not appear that the total appropriation will be sufficient. The city’s proposed budget includes a tax levy of $46.6 million which is $4,136 above the limit established by law.

Mottville Fire District – Budgeting and Financial Recordkeeping (Onondaga County) The board’s budgets were incomplete because the real property tax levy and a schedule of other estimated revenues were not included. Auditors also determined that the board did not adopt a fund balance policy or establish targeted funding levels for its reserve funds. In addition, the treasurer did not maintain accurate and reliable accounting records.

Rockland County – Sale of Estate Real Property The Office of Public Administrator (PA) guidelines regarding the sale of estate real property state that the PA shall determine fair market value and sell all real property or cooperative apartments at public auction or by private sale at the highest and best price available. Auditors determined that the administrator did not always get a professional appraisal for estate houses before listing them for sale.

Town of Smithville - Annual and Claims Auditing (Chenango County) The board did not annually audit the records of the supervisor or town clerk. Auditors also found that the board did not perform a deliberate and thorough audit of claims.

Wyoming County Court and Trust Funds The records maintained by the treasurer were not complete. Auditors found two actions, totaling $30,455, in the treasurer’s custody that were not recorded on the annual report sent to the State Comptroller’s Office as required. In addition, auditors identified one action for $28,204.84 that improperly remained in the treasurer’s custody that should have been turned over to the State Comptroller as abandoned property

City of Yonkers – Budget Review (Westchester County) Under the proposed budget, the city will have exhausted 80.1 percent of its constitutional tax limit. Auditors caution the city that if property values do not increase, its ability to increase taxes may be reduced in future years.

Town of Yorktown - Information Technology (Westchester County) Personal internet use was found on computers assigned to 10 employees, including four who routinely accessed personal, private and sensitive information (PPSI). Auditors found town officials did not adequately manage user accounts. In addition, the board did not develop a disaster recovery plan. Sensitive information technology (IT) control weaknesses were communicated confidentially to officials.