Defendants' failure to demonstrate that, as a matter of law, the credentials presented by the Plaintiffs did not permit them to perform the contemplated duties of their employment precludes granting Defendent's motion for summary judgment

Two former high-ranking public school district employees [Plaintiffs], alleging breach of their employment contract with the school district, appealed a federal district court's granting the Board of Education's motion for summary judgment.*  

Plaintiff's contended that the federal district court was incorrect in concluding that they did not possess the contractually requisite certifications for their positions at the time of their terminations, and that the district court erred in concluding that the Board of Education had not waived its right to invoke the relevant provision set out in Plaintiffs’ employment contracts.

With respect to Plaintiffs’ breach of contract claims, the Circuit Court had earlier remanded the issue for further proceedings as to whether Plaintiffs’ internship certificates satisfied the certification requirement in the parties’ employment contracts and whether the Board of Education had waived its right to invoke this contractual requirement. On remand, the district court concluded that the answer to both of these questions was “no,” and the instant appeals followed.

Noting that under New York law a plaintiff must establish that (1) “a contract exists,” (2) “plaintiff performed in accordance with the contract,” (3) “defendant breached its contractual obligations,” and (4) “defendant’s breach resulted in damages.” 

Further, in determining a party’s obligations under the contract, the Circuit Court opined that "it is well-settled that a court’s role 'is to ascertain the intention of the parties at the time they entered into the contract'" and in the event that intent is discernible from the plain meaning of the language of the contract, the court needs to look no further.” In contrast, should a court find an ambiguity in the contract, it "will look to extrinsic evidence," citing Schron v. Troutman Sanders LLP, 20 N.Y.3d 430.

Paragraph 13 of Plaintiffs’ employment agreements provided that if Plaintiff “fail[ed] to maintain any certifications or qualifications required of h[er] position (i.e., qualifications required by the Department of Civil Service or State Education Department), then this agreement "shall immediately become null and void.” 

Further, Paragraph 13 required Plaintiffs to “pass[] any examination the Department of Civil Service may deem appropriate for the position” and the “[f]ailure of either party . . . to insist upon strict compliance with any provision of the [a]greement shall not be construed to be a waiver thereof.”

The Circuit Court's ruling states that "the district court concluded that the relevant employment agreements 'required Plaintiffs to obtain certifications that would allow them to perform the duties of their positions, as those positions were defined and bargained for under the agreements," and that the 'internship certificates' that Plaintiffs held did not so qualify." However, the district court did not question that the internship certificates were “valid credential[s]” authorizing Plaintiffs “to act within the area of service for which the certificate is valid.” Rather the district court "determined that the “internship certificates did not qualify Plaintiffs to perform their positions under their contracts” because the certificates required the Board of Education “to undertake additional supervisory responsibilities related to Plaintiffs’ educational program and outcomes . . . that were not contemplated under the employment agreements.”

The Circuit Court of Appeals said it could not agree with the district court that, on this record and as a matter of law, the internship certificates did not qualify Plaintiffs to perform the duties contemplated by their employment agreements explaining that a reasonable factfinder could conclude that the employment agreements indicated that the “certifications or qualifications” required under the agreement were those “qualifications [that are] required by the Department of Civil Service or State Education Department” in view of the fact that the State Education Department submitted an amicus brief explicitly indicating that in its view the "Plaintiffs’ internship certificates 'w[ere] an acceptable certification allowing them to serve in their roles as school district leaders.'”

Thus, considering the State Education Department’s stated position, the Circuit Court said it could not say that "no reasonable juror could find that Plaintiffs’ internship certificates – which in the Department’s view qualify as certifications ... required by the ... State Education Department" would not allowed Plaintiffs to work as contemplated at the time of such contracting.

In Appeal of Coughlin, Decisions of the Commissioner of Education No. 14,751, the State Education Commissioner stated “an internship certificate is recognized by the State Education Department as a valid credential authorizing the holder to act within the area of service for which the certificate is valid”. 

The Circuit Court viewed Decision of the Commissioner No. 14,751, together with the State Education Department’s amicus brief, as "extrinsic evidence" that is probative of the parties’ understanding of the phrase “any certifications or qualifications required of h[er] position” at the time the contracts were executed.

However, given that this is a breach of contract case rather than an action that calls upon the Circuit Court to construe or interpret the relevant regulations, the Court said it agreed with the Board of Education that there is no reason for us to defer to the State Education Department’s interpretation of the regulations in this case and do not purport to do so here.

For this same reason, however, the Court of Appeals "decline the Board of Education's  invitation to examine post-Coughlin revisions to the relevant regulations in an effort to surmise whether the Commissioner would view an internship certificate as an acceptable alternative to the traditional school district leader certificate.

In the words of the Circuit Court, "Put simply, this is not a case in which 'the extrinsic evidence is so one-sided that no reasonable factfinder could decide contrary to one party’s interpretation' of the contract." Citing SCS Commc’ns, Inc. v. Herrick Co., 360 F.3d 329, and other decisions, the Circuit Court opined “When the language of a contract is susceptible to different interpretations and where there is relevant extrinsic evidence of the parties’ actual intent, then the contract’s meaning becomes an issue of fact precluding summary judgment [and ] the Board of Education’s arguments that the internship certificates indisputably do not enable Plaintiffs to perform their contemplated duties are unavailing on a motion for summary judgment and are better made [by] the factfinder at trial."

As the State Education Department explicitly recognized that school leaders have “[r]esponsibilty for the . . . performance evaluation of certified personnel” and still concluded that “[P]laintiffs’ respective . . . [i]nternship [c]ertificates were an acceptable certificate authorizing them to perform the duties of their positions,” the Circuit Court said that "[given] this competing evidence", it concluded that there is a genuine factual dispute as to whether Plaintiffs were foreclosed from performing the duty of evaluating school personnel." Further, there is no evidence that the internship certificate would have precluded Plaintiffs from acting as the superintendent’s designee, such that they could not have performed this aspect of their duties.

Finding that the Board of Education failed to demonstrate that, as a matter of law, the internship certificates did not allow Plaintiffs to perform the contemplated duties of their employment nor did the Board of Education demonstrate that Plaintiffs’ continued employment with the internship certificates would “foist additional, mandatory supervisory responsibilities on the District and/or the [s]uperintendent that the parties had not bargained for under the employment agreements”, the Circuit Court concluded that genuine issues of material fact preclude the entry of summary judgment in favor of the Board of Education.

The Circuit Court then vacated the judgments of the district court and remanded the cases "for further proceedings consistent with this order."

* Although Plaintiffs pursued separate appeals in this case, the United States Court of Appeals for the Second Circuit address both matters in a single order because the parties were represented by the same counsel, the issues presented were substantially the same, and the same district court order was on appeal in both cases.

Click HERE to access the Second Circuit's decision posted on the Internet.

 

Workers' Compensation Board finds applicant for Workers' Compensation benefits ineligible because the applicant voluntarily removed himself from the labor market

A Workers' Compensation Claimant, a police officer and a union representative tripped and fell in February 2021 on his way to internal affairs to represent another police officer and subsequently established a workers' compensation claim for injuries to his left shoulder, neck and back. Claimant continued to work until October 12, 2021, was released to return to work on December 21, 2021 and thereafter opted for a normal service retirement with approximately 34 years of service, effective December 30, 2021.

Claimant subsequently raised the issue of involuntary retirement as a result of the February 2021 established injuries. A Workers' Compensation Law Judge [WCLJ] found, among other things, that Claimant involuntarily retired from his employment. The Workers' Compensation Board modified the WCLJ's decision, finding that Claimant submitted insufficient credible evidence to show that his retirement was an involuntary withdrawal related to the disability for injuries stemming from the February 2021 accident. The Board then rescinded, among other things, any awards for the period subsequent to December 2021. Claimant appealed the Board's determination.

Citing Matter of Rivera v Joseph L. Balkan, Inc., 193 AD3d 1214, the Appellate Division affirmed the Board's ruling, noting that "Generally, a claimant who voluntarily withdraws from the labor market by retiring is not entitled to workers' compensation benefits unless the claimant's disability caused or contributed to the retirement". Further, opined the court, "the Board, which is the sole arbiter of credibility, is vested with resolving the factual issue of whether there has been a voluntary withdrawal, and its determination will not be disturbed if supported by substantial evidence."

The Appellate Division explained that in determining that Claimant did not provide sufficient evidence establishing that he involuntarily retired.

Significantly, the medical reports from Claimant's orthopedic surgeon submitted for the current claim specifically note that Claimant denied any prior neck injury, nor did they include any evaluation of whether the current disability purportedly leading to his retirement bore any relation to the prior permanent partial disabilities. Nor was there any indication that Claimant, although the medical reports state that Claimant is disabled from his employment as a police officer, discussed with the orthopedic surgeon that, although still a police officer, he was engaged in an administrative, light-duty capacity as a union representative and has not carried a firearm since at least 2005.

Deferring to the Board's credibility determinations, and considering other elements in Claimant's medical records, the Appellate Division concluded "substantial evidence supports the Board's determination that the evidence submitted was insufficient to establish that [Claimant's] retirement was an involuntary withdrawal related to a disability from the February 2021 injuries."

Click HERE to access the Appellate Division's decision posted on the Internet.

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Administrative Law Judge holds that termination of the employee was "reasonable under the circumstances"

New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Julia H. Lee recommended termination of the employment for a patient care associate [Respondent] who has been excessively absent since November 2020 and absent without leave (“AWOL”) since May 2022.

Respondent did not dispute that she has been absent without leave from May 2022 to the present but contended that her absence was due to her Agency [Employer] reassigning her to the operating room in retaliation for her taking Paid Family Leave and the Employer’s failure to grant her reasonable accommodation request. The ALJ found that Respondent’s absence from work since May 2022 was not obviated by her submission of a reasonable accommodation request and that she was not entitled to an accommodation where she would not be performing the essential functions of her job. Judge Lee also found that the Employer had proved Respondent was excessively absent on 34 dates from November 2020 through February 2022, and was AWOL on numerous occasions.

In contrast, the ALJ found Respondent was on bereavement leave following the death of her father. As a full-time employee, Judge Lee opined that Respondent was entitled to a “maximum of four workdays with pay for a death in the immediate family”. In addition, Judge Lee dismissed an AWOL charge for Respondent’s absence from September 2, 2021 through November 5, 2021, explaining that the Employer cannot prove that Respondent was AWOL if the Employer had placed Respondent on leave for failure to comply with the COVID-19 vaccine requirement and then charged her with being AWOL for the same period.

Finding that Respondent was excessively absent on 34 dates from November 9, 2020, through February 2, 2022; was AWOL from February 18, 2021, through April 18, 2021; was AWOL on March 28, 2022, and from March 30, 2022, through May 10, 2022; and was AWOL from May 12, 2022, "to the present", Judge Lee, and noting that Respondent has no prior disciplinary history and was a long-time employee with the Employer are "mitigating factors", the ALJ concluded that the Employer's seeking Respondent's termination "is appropriate" and so recommended.

Click HERE to access Judge Lee's decision.

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Correction officer terminated after being found guilty of using excessive force against an inmate and filing a false report concerning the event

A former employee [Petitioner] of the New York City Department of Correction [DOC] challenged his being terminated after being found guilty of excessive use of force against an inmate and submitting a false use of force report. The Appellate Division unanimously dismissed his appeal, opining that substantial evidence supported the findings of the Administrative Law Judge [ALJ] that Petitioner used "excessive and unjustified force against an inmate" in the form of video footage showing Petitioner run up behind the inmate and punch the inmate in the side of the head, "all while the inmate was in restraints and compliant with two escort officers".

At his disciplinary hearing the Petitioner admitted that he struck the inmate as "emotional response" to the inmate's verbal taunts about having thrown a tray of food at Petitioner minutes earlier. The Appellate Division said that this evidence "sufficiently supports the ALJ's determination that [Petitioner] violated DOC's Use of Force Directive, which prohibits the use of high impact force, including [s]trikes or blows to the head" unless a staff member "is in imminent danger of serious bodily injury or death," and prohibits the use of any force to retaliate against an inmate or in "response to an inmate's verbal insults, threats, or swearing."

Accordingly, the Court said DOC's decision to terminate Petitioner's employment was not an abuse of discretion considering the severity of Petitioner's conduct, which created "a needless risk of serious injury to the inmate" and, citing Matter of Harp v New York City Police Dept., 96 NY2d 892, held that the penalty imposed does not shock one's sense of fairness, "notwithstanding [Petitioner's] lack of disciplinary record."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

New York State Comptroller DiNapoli releases municipal and school audits

On March 29, 2024, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click on the text highlighted in color to access both the summary and the complete audit report

 

Village of Cato – Water Financial Operations (Cayuga County)

The board and officials did not effectively manage the financial operations of the water fund, establish adequate reserves or develop long-term financial and capital plans until the Cayuga County Health Department forced the board to submit a plan. In addition, $42,696 in unauthorized billing adjustments were made. Of 464 water bills reviewed (totaling $134,852), 71 had calculation errors totaling $7,903 which included $6,607 that should have been billed and collected and $1,296 in overbillings. Auditors found 27% of the water produced (at a cost of approximately $20,000), or 9.4 million gallons, is considered unauthorized non-revenue water or lost water. In addition, long-term capital water needs were not appropriately planned for. 

Clymer Central School District – Payroll (Chautauqua County)

Employee compensation payments were not always accurate, approved or supported. District officials did not ensure pay rates were accurate or that compensation was paid in compliance with employment agreements. As a result, payroll errors went undetected and resulted in unnecessary and erroneous payroll payments. District officials made compensation errors totaling $28,500 because they used incorrect pay rates or incorrect hours/days worked to calculate 16 employees’ pay and paid five employees a total of $4,792 for retroactive raises that were not authorized by the board of education. Officials also paid 16 employees perfect attendance awards totaling $2,550 that they were not eligible for  and did not require written prior authorization for overtime work. Another 12 overtime payments totaling $1,858 were not supported with evidence of approval.

 

Deer Park Union Free School District – Fuel and Vehicle Inventory (Suffolk County)

District officials did not adequately maintain vehicle inventory or monitor fuel usage. As a result, vehicles and fuel were not properly accounted for. Officials did not maintain accurate inventory records of vehicle additions and disposals, and there were discrepancies with 19 vehicle inventory records. In addition. officials did not obtain board of education approval prior to disposing of vehicles, or promptly remove unused vehicles from insurance, resulting in $17,237 of unnecessary costs. Auditors also found 44,976 gallons of fuel was dispensed without identifying who pumped the fuel.

 

Green Tech High Charter School – Payroll (Albany County)

Officials did not accurately pay salaries and wages to 10 of the 67 employees reviewed and could not support payments made to 54 employees totaling $41,626. Officials made payroll calculation errors totaling $1,210 for 10 salaried employees and did not maintain time sheets or payroll status change forms documenting approved pay rates to support $7,220 in wages paid to three hourly employees reviewed. Official also could not support approvals for miscellaneous payments totaling $16,706 made to seven employees or support class coverage payments totaling $17,700 made to 44 employees.

 

Garden City Union Free School District – Information Technology (IT) Asset Management (Nassau County)

District officials did not properly track or inventory IT assets, maintain complete IT inventory records or safeguard IT assets. As a result, officials cannot assure taxpayers that IT assets are adequately accounted for and would be detected if lost, stolen or misused. Auditors selected 60 IT assets from invoices and device management reports to confirm their location and that they were inventoried and 10 additional IT assets to confirm they were inventoried. They determined that 23% of the assets were not properly accounted for.

 

Inlet Common School District – Claims Processing (Hamilton County)

The claims reviewed were supported and for appropriate purposes but did not have evidence that they were audited and approved before payment. As a result, the district has an increased risk that unauthorized claims could be paid. The board and district officials did not provide effective oversight of claim processing and payment. Board members did not document the date that they authorized claims to be paid. In addition, district officials used a debit card to pay for 60 purchases totaling $6,840 that were not subject to board approval.

 

Lewis County Court and Trust

Auditors reviewed the processes, procedures and records for the receipt and management of court and trust funds as well as estates in the treasurer’s custody and found that the treasurer generally established adequate procedures, maintained appropriate records, and properly reported court and trust funds. However, auditors identified $239 that improperly remained in the treasurer’s custody that should have been turned over to the State Comptroller as abandoned property.

 

Morley Volunteer Fire Company – Misappropriation of Funds (St. Lawrence County)

Company officials did not provide oversight of financial operations to ensure funds were safeguarded. As a result, the former treasurer was able to misappropriate $64,972 of company funds from January 2016 through Dec. 2019. The former treasurer was able to obtain cash totaling $45,400 by making inappropriate automated teller machine and in-bank withdrawals, writing unauthorized checks to herself and receiving cash from company funds presented for deposit and make 178 personal purchases totaling $19,572 using a company debit card. These improper transactions went undetected because company officials did not review monthly bank statements and canceled check images, receive monthly financial reports, audit bills prior to payment or compare cash collections to deposits. The former treasurer was arrested in July 2023 and pleaded guilty to grand larceny in the fourth degree in November 2023. She was sentenced to probation in January 2024 and ordered to pay $50,000 in restitution.

 

Shenendehowa Central School District – Longevity Payments (Saratoga County)

District officials did not ensure longevity payments for employees separating from service were accurate, supported and approved. District officials did not accurately calculate longevity payments for 26 of the 32 (81%) employees reviewed. As a result, 26 employees were underpaid a total of $9,214 in longevity for separation payments. Although employees covered by the Shenendehowa United Supervisors’ Association and Management Confidential collective bargaining agreements receive longevity payments, their agreements do not include language for these payments upon separation.

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