Concerning proper service, timeliness, standing and employment discrimination with respect to appeals to the Commissioner of Education

In this appeal to the Commissioner of Education from action of the Board of Education, the Commissioner first addressed a number of procedural issues.

1. Proper service:  §275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

Effective April 7, 2020, during the time period of any movement restrictions or school closures directed by the Governor pursuant to an Executive Order during the COVID-19 crisis, the Commissioner noted that a petitioner may effectuate alternative service on a school district in the following manner:  

(1) by mailing the petition, notice of petition and all supporting papers by first class mail in an envelope bearing the legend “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... to the attention of the district clerk and superintendent of schools ...; and (2) on the same date as the mailing, emailing the petition, notice of petition and all supporting papers under the subject heading “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... to both the district clerk and superintendent of schools ....  Service shall be deemed complete upon completion of both steps identified above (8 NYCRR 275.8 [f]).

The Commissioner rejected the Board of Education's argument that this provision "does not apply because, at the time the appeal was commenced, the district was “open” and there were no movement restrictions or school closures that would have impacted petitioners’ ability to effectuate personal service."  

The Commissioner declined to dismiss the appeal for lack of personal services "Under the circumstances of this appeal," noting that the Board of Regents adopted the version of 8 NYCRR 275.8 (f) applicable here in April 2020, shortly after the Governor declared a State disaster emergency for the entire State of New York on March 7, 2020, finding that "it is in the spirit of the amendment to permit alternative service under the circumstances of this appeal, and I decline to dismiss the appeal on that basis."

2. Timeliness: An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR § 275.16. Noting that the record indicates that "the acts of which petitioners complain occurred at a public meeting of the board held on October 8, 2020", the Commissioner held that although petitioners would ordinarily be required to commence the appeal by November 7, 2020, "that day was a Saturday.  Where, as here, the 30-day time period in which to commence an appeal ends on a Saturday, the petition may be served on the following business day," citing 8 NYCRR 275.8 [a].  Thus, said the Commissioner, petitioners’ service of the petition on November 8, 2020 was within the 30-day time limitation.*

3. Standing: An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal, or property rights and only an individual who is directly affected by an action has standing to commence an appeal therefrom. The Commissioner explained that a petitioner lacks standing to assert the rights of others who applied for the special education teaching positions.

4. Employment discrimination: The Commissioner ruled that a petitioners’ claims of employment discrimination is beyond the scope of an appeal to the Commissioner pursuant to Education Law §310, noting that the State's Human Rights Law contains a comprehensive scheme for the investigation and enforcement of human rights violations through the Division of Human Rights, citing Executive Law § 295).  Accordingly, it would be contrary to this structure for the Commissioner to assume jurisdiction over such claims.

The Commissioner noted that "Petitioners are correct that the Commissioner has opined upon claims of discrimination in prior appeals (e.g., Appeal of D.B., 49 Ed Dept Rep 319, Decision No. 16,041)." However, said the Commissioner, the "does not affect my conclusion that petitioners’ claims here — such as the disparate impact of hiring practices like “word of mouth” referrals – are more appropriately resolved by a fair employment practice agency or a court of competent jurisdiction," citing Grant v Bethlehem Steel Corp., 635 F2d 1007.

The Commissioner then addressed the merits of the appeal.

Click Here to access the full text of her decision.

Judicial authority to review classification and compensation decisions of the State's Director of Classification and Compensation with respect to positions subject to the jurisdiction of the State's Department of Civil Service

As a result of the merger of the State's Banking and Insurance Departments into single agency, the Department of Financial Services, new agency commenced a title modernization initiative intended to, among other things, restructure and consolidate certain obsolete job titles, including, as relevant here, replacing the titles of Bank Examiner 1 (Salary grade 20) and Insurance Examiner 1 (Salary grade 18) with a newly created entry-level title, Financial Services Examiner 1 (Salary grade 18).

In a proceeding pursuant to CPLR Article 78 to review the determination of the New York State Civil Service Commission reclassifying and reallocating job titles at issue, Supreme Court dismissed the President of the New York State Public Employees Federation's  [Petitioner] application for judicial review.*

Petitioner, had challenged the decision of the New York State Department of Civil Service's Division of Classification and Compensation [DCC], objecting to the title restructuring, alleging, among other things, that the salary grade for the Bank Examiner 1 title was improperly reallocated from a salary grade 20 to a salary grade 18. Subsequently the New York Civil Service Commission confirmed DCC's determination.

The Appellate Division, noting that the "sole issue preserved for [its] review is whether the determination allocating a salary grade 18 to the newly created Financial Services Examiner 1 title had a rational basis," explained that §118 of the Civil Service Law vests DCC's Director with the authority "to classify and reclassify all positions in the classified civil service of the [s]tate and to make such revisions in the classification and compensation of positions as changes in the [s]tate service may require."**

The court then opined that "review of administrative determinations with respect to classification is limited and, unless the determinations are shown to be wholly arbitrary and capricious or without a rational basis, they will not be disturbed ... even if there are legitimate grounds for a difference of opinion."

Finding no basis to disturb Supreme Court's judgment, the Appellate Division dismissed Petitioner's appeal.

* In 2011, the State of New York merged the Banking Department and the Insurance Department into the Respondent herein, the Department of Financial Services [See Chapter 62, §1 Part A of the Laws of 2011].

** The Appellate Division cited Citing Cohen v New York State Civ. Serv. Commn., 90 AD2d 884, in support of its determination.

Click Here to access the full text of the Appellate Division's decision.

 

The Discipline Book -

A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click https://booklocker.com/books/5215.html.

Restoring an individual on Civil Service Law Section 71 workers' compensation leave to duty

An employee [Plaintiff] employed by a state agency [Department] suffered a work-related injury and was placed on workers' compensation leave pursuant to Civil Service Law §71. Plaintiff regularly submitted medical documentation supporting her assertion that she was unfit to return to her employment. Department then notified Plaintiff that as she had been absent for one cumulative year, she would be terminated from her position. Department also advise Plaintiff that she could apply for restoration to duty if she was medically fit and directed her "to submit medical documentation clearing her to return to work before an examination was scheduled."

Plaintiff, however, ignored this directive and scheduled the medical examination on her own.* Upon learning of this, the Department, apparently relying on 4 NYCRR 5.4(d)(1)** cancelled the appointment and subsequently terminated Plaintiff 's employment after she declined to submit the requested medical documentation to it.

Plaintiff then commenced the instant CPLR Article 78 proceeding alleging that [1] the Department violated the Civil Service Law and its regulations, [2] her termination was arbitrary and capricious and [3] her due process rights were violated. Ultimately Supreme Court dismissed Plaintiff's petition finding that it was not unreasonable, irrational or arbitrary for the Department to request certain medical information prior to making its preliminary determination as to petitioner's medical fitness to perform the duties of her position and further that petitioner failed to demonstrate that the Department's request for medical documentation was an error of law.

Plaintiff appealed the Supreme Court's judgment, contending that 4 NYCRR 5.9 places no duty upon her to submit medical documentation in order to return to work. The Appellate Division disagreed, opining that 4 NYCRR 5.9(c)(2) provides that the employee has a "right to apply to the appointing authority pursuant to subdivision (d) of this section for reinstatement to duty if medically fit" (emphasis added by the court).

The Appellate Division explained that the requirement that employee then on §71 leave to initially produce medical documentation showing the employee is medically fit to return to work "prior to scheduling a medical examination promotes an efficient procedure, in a fiscally sound manner, that is rationally related to the Department's interest in returning only medically fit employees to their duties."

Noting that the record indicated that Plaintiff never asserted that she was medically fit to perform her duties prior to her termination and that the only medical documentation consistently presented to the Department for over one year was statements from Plaintiff's own physician attesting that she was unable to return to work, the Appellate Division concluded that the Department's determination was not arbitrary and capricious or irrational.

Addressing Plaintiff's claim that the Department's failure to provide her with a medical examination violated her due process rights, the Appellate Division said that the record indicates that Plaintiff "received a pretermination notice that set forth the reasons she was being terminated, explained that she could apply for reinstatement if medically fit, requested her to produce medical documentation showing that she was fit and informed her that she was entitled to a pretermination meeting." Thus, said the court, Plaintiff's  due process rights were satisfied as she was provided [1] with an explanation of the grounds for discharge; [2] given an opportunity to respond prior to her actual termination and [3] did in fact participate in a pretermination meeting.

* §71 of the Civil Service Law provides that an individual so terminated may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction for a medical examination. 

 ** 4 NYCRR 5.4(d)(1), Restoration to duty from workers' compensation leave, provides "(1) Upon request by the employee, the appointing authority, if satisfied that the employee is medically fit to perform the duties of the position, shall restore the employee to duty. If not satisfied that the employee is medically fit to perform the duties of the position, the appointing authority shall require the employee to undergo a medical examination, by a physician designated by the appointing authority, before the employee may be restored to duty. Prior to the medical examination, the appointing authority shall provide the designated physician and the employee with a statement of the regularly assigned duties of the position from which the employee is on leave."

Click HERE to access the text of the Appellate Division's decision.