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Friday, February 12, 2016

Arbitrator to determine if contract clauses alleged in a grievance involve substantive contract provisions


Arbitrator to determine if contract clauses alleged in a grievance involve substantive contract provisions
Matter of Onondaga-Cortland-Madison Bd. of Coop. Educ. Servs. (Onondaga-Cortland-Madison BOCES Federation of Teachers, 2016 NY Slip Op 00796, Appellate Division, Fourth Department

Onondaga-Cortland-Madison Bd. of Coop. Educ. Servs. [BOCES] initiated an Article 75 proceeding seeking a permanent stay of arbitration of a grievance that alleged that BOCES violated certain provisions of relevant collective bargaining agreement (CBA) by changing the prescription copay benefit for its retirees. Supreme Court denied the petition and granted the cross-petition of the Onondaga-Cortland-Madison BOCES Fedn. of Teachers [Federation] to compel arbitration. The Appellate Division affirmed Supreme Court’s ruling.

The Appellate Division rejected BOCES’ contention that the matter was not arbitrable because the CBA provisions applied to the employees and not to retirees, and thus that there is no reasonable relationship between the copay benefit for retirees and the general subject matter of the respective CBAs.

Citing Village of Kenmore [Kenmore Club Police Benevolent Association, 114 AD3d 1185, (leave to appeal denied, 23 NY3d 903), the court explained that the issues concerning [the Federation’s] relationship to retired employees and the issues concerning [1] whether retirees are covered by the grievance procedure and [2] whether the clauses of the contract[s] support the grievance “are matters involving the scope of the substantive contractual provisions and, as such, are for the arbitrator" to resolve.

The Appellate Division said that it was “well settled that the court must conduct a two-part analysis in determining whether an issue is subject to arbitration pursuant to a CBA.” The first test: is there any statutory, constitutional or public policy prohibition against arbitration of the grievance. The second test: "is there a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Unanimously denying its appeal, the Appellate Division noted that BOCES “correctly concedes that the second test considered in the analysis is at issue here.”

The decision is posted on the Internet at:

Thursday, February 11, 2016

Terminated probationary employee has the burden of demonstrating an improper basis for his or her termination


Terminated probationary employee has the burden of demonstrating an improper basis for his or her termination
Francois v Walcott, 2016 NY Slip Op 00760, Appellate Division, First Department

The Appellate Division unanimously affirmed a determination by Supreme Court, New which denied the petition filed by Coquita Francois seeking to annul her termination during her probationary employee, to vacate her unsatisfactory rating for the 2012-2013 school year, and to reinstate her employment.

The Appellate Division explained that “[i]t is well established that a ‘probationary employee may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law.’”

Francois, said the Appellate Division, failed to demonstrate an improper basis for the termination of her probationary employment. In contrast, the employer’s documentary evidence provided a rational basis for the determination that Francois’ job performance was unsatisfactory.

Although Francois disputed the principal's account of events and the principal's opinion of her job performance, the Appellate Division said that she “failed to show that certain irregularities in the review process demonstrated bad faith or deprived her of a substantial right” and dismissed her appeal.

The decision is posted on the Internet at:

Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing


Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing
Matter of Hopton (Commissioner of Labor), 2016 NY Slip Op 00743, Appellate Division, Third Department

Nina Hopton, a correction officer, was served with disciplinary charges alleging that she had violated her employer's rules [1] by having an improper personal relationship with an inmate and [2] by giving false statements to investigators regarding that relationship.

Following a disciplinary hearing held in accordance with Civil Service Law §75, an Administrative Law Judge found there was evidence sufficient to support the bulk of the charges filed against Hopton and recommended that she be dismissed from her position. The appointing authority accepted the findings and recommendations of the Administrative Law Judge and terminated Hopton employment.

Hopton applied for unemployment insurance benefits but the Unemployment Insurance Appeal Board [Board] denied her claim on the ground that she lost her employment due to misconduct. Hopton appealed the Board’s ruling.

The Appellate Division sustained the Board’s decision, explaining that the Board “properly gave collateral estoppel effect to the factual findings stemming from the disciplinary hearing inasmuch as the record establishes that [Hopton] had a full and fair opportunity to litigate the issue of misconduct at that hearing."

Although Hopton contended that she was appealing the disciplinary determination, the Appellate Division said that such an appeal “does not preclude the application of collateral estoppel.” In any event, said the court, the Board “drew its own conclusions that [Hopton’s] behavior, which involved violations of known policies of the employer and were detrimental to the employer's best interest, constituted disqualifying misconduct for the purpose of [eligibility for] unemployment insurance benefits."

Finding that substantial evidence supported the Board's decision, the Appellate Division said “it will not be disturbed.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_00743.htm
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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html 
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Wednesday, February 10, 2016

New York City service contractor held liable for wages, benefits, interest and the payment of a civil penalty for its failure to pay employees prevailing wages and benefits


New York City service contractor held liable for wages, benefits, interest and the payment of a civil penalty for its failure to pay employees prevailing wages and benefits
Office of the City Comptroller v Paramount Security Group, Inc., OATH Index No. 2553/15

Paramount Security Group, Inc., a services contractor admitted to failing to pay prevailing wages and benefits of $1.8 million to 28 security employees working at the Health and Hospitals Corporation (HHC) offices.

It was undisputed that Paramount failed to pay prevailing wages to its security employees from December 2010 to March 2013. Paramount, however alleged that the entire blame for this violation was on HHC, which Paramount insisted prevented compliance with the prevailing wage law by refusing to approve increased wages.

OATH Administrative Law Judge John B. Spooner found that “the notion that Paramount knowingly violated the terms of its contract based upon verbal directions of HHC personnel, without protesting or seeking approval from a higher authority, was highly improbable” as the contract between Paramount and HHC provided, in pertinent part, that during the term of this agreement, “the contractor shall be responsible for paying the prevailing wage rate in New York City to all of its security guards.” The contract also provided that HHC was “not responsible for any type of payroll increase . . . . [e]xcluding prevailing wage requirements” [emphasis supplied].

The ALJ held that the evidence supports a finding that Paramount’s violations of Labor Law §230 were willful was liable for the wages, benefits due the employees, plus interest and a civil penalty. As to interest, Judge Spooner held that the Comptroller was entitled to  maximum interest, at the annual rate of 16%, from the date the wages and benefits were payable and in addition, Paramount should be assessed a civil penalty of 25% of the total violation.

The decision is posted on the Internet at:

A “deadline” set out in a collective bargaining agreement may be a nonbinding housekeeping rule unless the penalty for noncompliance is set out in the agreement


A “deadline” set out in a collective bargaining agreement may be a nonbinding housekeeping rule unless the penalty for noncompliance is set out in the agreement
Raymond Muller v Government Printing Office, United States Court of Appeals, Federal Circuit, No. 2015–3032

Raymond Muller asked his union to have his grievance against his employer, the Government Printing Office [GPO], submitted to arbitration. The relevant contract provision stated that if the grievance was not resolved to the satisfaction of the parties at the agency level “Arbitration must be invoked within 30 days.” The agreement further provided that “[t]he arbitration hearing will take place within 4 months after filing of the notice of decision to proceed to arbitration, unless the parties mutually agree to an extension of the time limit.”

As the grievance was not resolved at the agency level, a timely demand for arbitration was submitted to GPO. GPO referred the matter to arbitration pursuant provisions set out in the relevant collective bargaining agreement. GPO, four months to the day from the date that arbitration had been invoked, wrote to the union and the arbitrator “to ask that the arbitration be closed for failure to comply with the four-month deadline.” After reviewing briefs submitted by the parties the arbitrator concluded that “[T]here is ample evidence in the record, although none is required contractually, that the union … was the direct and primary cause for the failure of the parties to meet the four-month requirement” and dismissed Muller’s grievance as “not arbitrable,” as the “four-month deadline” for holding a hearing had passed.” The arbitrator's decision was appealed and considered by the U.S. Circuit Court of Appeals, Federal Circuit.

The court unanimously disagreed with the arbitrator's determination, explaining that the relevant contractual provision did not require dismissal of the grievance in the event of noncompliance with the four-month deadline. The court characterized the deadline as “merely a nonbinding housekeeping rule” to encourage timely arbitration and applies to both the arbitrator and the parties involved. Nor, said the court, there was no “past practice” in place requiring dismissal under the circumstances of this case.

The Circuit Court noted that “[c]ourts should be careful not to ‘judicialize’ the arbitration process.” Arbitration typically envisions that each case be decided on its own under the controlling contract as “t]he collective bargaining agreement is the primary tool used in the arbitration process.” Thus, said the Circuit Court, [i]t is therefore up to the negotiating parties to impose any internal deadlines on the arbitration process.” Further, the commented the court, in this instance “it is not within the union's power to ensure compliance with the four-month deadline; and the [relevant contract] provision does not specify dismissal as a sanction for failure to comply with the deadline.”

The court also noted that the contract provides that a “failure to meet a deadline will result in the grievance moving to the next step.” Pointing out that the “next step after a hearing” is the decision by the arbitrator, the Court of Appeals characterized such a result as “nonsensical” and that GPO did not contend that “failure to meet the four-month deadline should result in a decision without a hearing.”

Ruling that there was no basis in the text of the master agreement to support the arbitrator's conclusion that noncompliance with the four-month hearing deadline automatically invalidated Muller's claim, the court remanded the matter for a determination of of Muller’s grievance on its merits.

The decision is posted on the Internet at:

Tuesday, February 09, 2016

Disciplinary penalty imposed, termination, held reasonable under the circumstances


Disciplinary penalty imposed, termination, held reasonable under the circumstances
Weinstein v New York State Workers' Compensation Bd., 2016 NY Slip Op 00505, Appellate Division, Second Department

Robert S. Weinstein, a Workers' Compensation Law Judge, was served with a notice of discipline by which the respondent sought to terminate his employment based on three charges of insubordination, two charges of misconduct/incompetence, and three charges of misconduct. The arbitrator found that the Workers’ Compensation Board [Board] had proven seven out of the eight charges and that the penalty of termination was proper.

Weinstein filed an Article 75 petition seeking to vacate the arbitration award. Supreme Court granted the Board's motion to dismiss the petition and, in effect, denied Weinstein’s petition and dismissed the proceeding. Weinstein appealed, contending the penalty imposed, termination, “was unduly harsh and disproportionate.”

The Appellate Division observed that although “the excessiveness of a penalty is not one of the enumerated bases upon which an arbitration award may be vacated,” where an arbitration is compulsory, as is here the case, judicial review under CPLR Article 75 requires that the award be in accord with due process. Citing Russo v NYC Department of Education, 25 NY3d 946, the court rejected the Board’s contention to the contrary and held that “the excessiveness of a penalty is a basis upon which an arbitration award may be vacated.

The court ruled that in this instance “the penalty of termination was not so disproportionate to the offenses as to be shocking to one's sense of fairness, citing the so-called Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, explaining that the arbitrator rationally determined, based on the evidence presented, that Weinstein was insubordinate and failed to complete his assignments in a timely manner, despite several remedial measures undertaken by his employer, and dismissed his appeal.

The decision is posed on the Internet at:
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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing 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
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The Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service


The Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service
Moser v Tawil, 2016 NY Slip Op 00501, Appellate Division, Second Department

Robert T. Moser was employed by the City of Middletown as a part-time code enforcement officer. On April 27, 2012, the Mayor of Middletown unilaterally decided to abolish that position for economic reasons. Moser filed a CPLR Article 78 petition seeking a court order annulling the Mayor’s decision that resulted in his termination and directing his reinstatement to his former position with back salary.

Following a hearing, Supreme Court determined that the Mayor had exceeded his authority under the Middletown City Charter and granted Moser’s petition.

The Appellate Division commenced its review of Mayor’s appeal by noting that “The questions that may be raised in a CPLR Article 78 proceeding include "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion."

Finding that Supreme Court correctly concluded that the Mayor did not have the authority to unilaterally abolish the position of part-time code enforcement officer, the Appellate Division explained that the City Charter “grants the Middletown Board of Estimate and Apportionment the power to create civil service positions in Middletown by providing that it "shall fix the powers and duties and regulate the salaries and compensation of all city officers and employees."

While the City Charter authorizes the Mayor, with certain limitations, to suspend an employee for cause, there is nothing in the City Charter granting the Mayor authority to unilaterally abolish civil service employment positions.

Sometimes referred as the Doctrine of Legislative Equivalency, the court said that the general rule, when not qualified by positive law, is that the power which creates an office may abolish it in its discretion and this rule applies to municipal offices created by the act of some municipal body. Accordingly, “having been granted the power to create civil service employment positions in Middletown, it is the Board of Estimate and Apportionment, and not the Mayor, that is vested with the power to abolish them.”

The Doctrine of Legislative Equivalency, applied by the Court of Appeals in deciding the Torre v County of Nassau, 86 NY2d 421, sets out the principle that a position created by a legislative act can be abolished only by a correlative legislative act.

The decision is posted on the Internet at:

Monday, February 08, 2016

In the event there is a conflict between a provision in the County Code and the County Charter, the provision in the County Charter controls


In the event there is a conflict between a provision in the County Code and the County Charter, the provision in the County Charter controls
James Carver v County of Nassau, 2016 NY Slip Op 00466, Appellate Division, Second Department
[See, also, James Carver v County of Nassau, 2016 NY Slip Op 00467, Appellate Division, Second Department]

Prior to 2007, the Nassau County Charter and the Nassau County Administrative Code both provided that the Commissioner of Police had control over the discipline of members of the Nassau County Police Department. In 2007, the Nassau County Legislature amended §8-13.0 of the County Administrative Code by adding subdivision (e), which amendment allowed for the resolution of certain disciplinary matters through binding arbitration.

In 2008, the Police Benevolent Association of the Police Department of the County of Nassau, N.Y., Inc. [PBA] and the County of Nassau entered into a collective bargaining agreement that, in pertinent part, provided that police officers “subject to a fine, penalty, or suspension of 10 or more days without pay, or its monetary equivalent,” had the option of proceeding to binding arbitration in lieu of a departmental disciplinary hearing. 

In 2012, the County Legislature enacted Local Law No. 9-2012 of the County of Nassau, repealing §8-13.0(e) of the County Administrative Code.

PBA challenged this action by the County Legislature seeking a court order declaring that the 2008 agreement was valid and was not altered by Local Law No. 9-2012. In addition, PBA alleged Local Law No. 9-2012, repealing §8-13.0(e) of the County Administrative Code, “did not impact the parties' contractual obligations pursuant to the 2008 agreement and, therefore, [PBA is] entitled to a permanent injunction enjoining the enforcement of Local Law No. 9-2012 of the County of Nassau.”

Supreme Court ruled that as the County Charter vested the power to discipline members of the Nassau County Police Department exclusively with the Commissioner of Police, the County Legislature's attempt to divest the Commissioner of a portion of that disciplinary authority by amending the County Administrative Code to allow for binding arbitration of certain disciplinary matters created a conflict between the Code and the Charter, and, in the face of such a conflict, the Charter controlled.

The Appellate Division agreed, holding that Supreme Court “properly concluded that the County Legislature's enactment of §8-13.0(e) of the Nassau County Administrative Code was invalid and that the subsequent repeal of §8-13.0(e) of the County Administrative Code by Local Law No. 9-2012 of the County of Nassau was proper and should not be enjoined.”

Citing Patrolmen’s Benevolent Association of the City of New York v PERB, 6 NY3d 563 and Town of Wallkill v CSEA, Town of Wallkill Police Department Unit, 19 NY3d 1066, the court said “as the [Nassau] County Legislature expressly committed disciplinary authority over the Nassau County Police Department to the Commissioner of Police, collective bargaining over disciplinary matters was prohibited.”

In the Patrolmen’s case, the Patrolmen's Benevolent Association of the City of New York (NYCPBA) sought to annul a decision by the Public Employment Relations Board (PERB) that the City need not bargain with the PBA over five subjects, even though those subjects had been dealt with in an expired collective bargaining agreement. The Court of Appeals sustained PERB’s ruling, explaining “that the New York City Charter and Administrative Code, as interpreted in Matter of City of New York v MacDonald (201 AD2d 258, 259 [1st Dept 1994]), required that the discipline of New York City police officers be left to the discretion of the Police Commissioner.”

In Wallkill, the Court of Appeals ruled that although for more than a decade collective bargaining agreements (CBA) between the Town of Wallkill (the Town) and the Town of Wallkill Police Officers' Benevolent Association, Inc. (PBA) provided that police officers subject to discipline by the Town had the right to a hearing before a neutral arbitrator, in 2007 the Town adopted Local Law No. 2, which sets forth disciplinary procedures for police officers different than those set out in the CBA.

The Court explained that notwithstanding “the strong and sweeping policy of the State to support collective bargaining under the Taylor Law," police discipline may not be a subject of collective bargaining under the Taylor Law “when the Legislature has expressly committed disciplinary authority over a police department to local officials."

Noting that Civil Service Law §76(4) states that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local" preexisting laws,” the Court of Appeals concluded that “that the Town properly exercised its authority to adopt Local Law No. 2 pursuant to Town Law §155" and that police discipline “is a prohibited subject of collective bargaining between the Town and the PBA.”

The decision is posted on the Internet at:

The Kyung Hee University [KHU] Library in Seoul Korea is posting NYPPL items.


The Kyung Hee University [KHU] Library in Seoul, Korea is posting NYPPL items. 

The Kyung Hee University [KHU] Library in Seoul, Korea is including postings from New York Public Personnel Law in its Serials Collection. It reports that it has posted 7679 items from this LawBlog to date.

Below is an example of a recent KHU Library post:


New York Public Personnel Law: Police confrontations with mentally impaired citizens and inmates


저널명:

New York Public Personnel Law [Public Employment Law Press - BLOG]

발행일:

2016/01/28

자료는 도서관에서 구독하고 있지 않는 자료입니다. 페이지 아래에 표시되어 있는 옵션(ISSN 검색 KHU Library , 서명 검색 KHU Libray) 통해 인쇄본 구독 여부를 확인 하시거나 또는 타도서관 자료복사 서비스를 이용하시기 바랍니다. 오른쪽에 FRIC배너가 보이시는 자료는 RISS에서 제공하는 복사서비스 링크를 클릭하셔서 신청하실 있습니다. 밖에 추가 문의가 있으시다면, 오른쪽 상단에 '도서관에 도움 요청' 클릭하셔서 직원에게 해당내용을 전달해 주시기 바랍니다. 최대한 빠르게 답변을 드리도록 하겠습니다. 감사합니다.^^






For those NYPPL readers who may prefer to read this LawBlog in Korean, the URL is
http://khis.khu.ac.kr

Saturday, February 06, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending February 6, 2016


Selected Reports issued by the Office of the State Comptroller during the week ending February 6, 2016
Click on text highlighted in color to access the full report

Former Monroe County Chief Information Officer enters guilty plea in bid-rigging case
Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Nelson Rivera, the former Chief Information Officer for Monroe County, for working with others to rig the bidding process for multi-million dollar public works contracts in Monroe County. Rivera entered a guilty plea before The Honorable Dennis M. Kehoe in Monroe County Court to two counts of the class “E” felony charge of Combination in Restraint of Trade and Competition in violation of General Business Law §§ 340 and 341, also known as New York State’s Donnelly Act. Based on what was stated on the record in court proceedings, it is expected that Rivera will be sentenced to five years of probation, may never again serve as a New York public employee, must pay a $25,000 fine, and will give up his government pension.


Florida resident to make full restitution after stealing $274,920.16 in New York State pension funds
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced that Marc A. Eletz, 70, a resident of Boca Raton, Florida, was sentenced in Albany County Court to five months in jail, $200,000 in restitution and signed a confession of judgment in the amount of $74,920.16 for stealing $274,920.16 in New York state pension benefits. Eletz previously pleaded guilty to the crime of Grand Larceny in the Third Degree, a class D felony, in September 2015.


State Audits published


Metropolitan Transportation Authority Metro-North Railroad - Payments to On-Board Service Managers

Office of Court Administration - Reporting on Foreclosure of Real Property Funds – Kings County


Municipal Audits published

Town of Ausable - Water and Sewer District Financial Operations


Town of Guilderland – Employee Compensation and Benefits


Town of Salem – Financial Management

Westbury Water District - Purchasing


School Audits published

East Islip Union Free School District – Financial Condition



From the Blogs - Focusing on Unlawful Discrimination - Posted by Employment Law News


From the Blogs - Focusing on Unlawful Discrimination - Posted by Employment Law News
WK WorkDay, A service provided by Wolters Kluwer Legal & Regulatory U.S. [http://www.employmentlawdaily.com/] [Internet links highlighted in color]


Religious accommodation of an atheist employee, protecting a male employee against sexual harassment, and prohibiting discrimination against white employees, are just a few recent examples of the broad reach of our federal anti-discrimination laws. Those laws may have developed in reaction to injustices against particular groups of individuals (e.g., African-Americans), but the law today is more focused on categorical discrimination (e.g., discrimination based on race—any race). Moreover, those categories, including race, gender, religion, disability, and more, are expanding. Some recent examples:

Atheist employee fired for taping over religious message on ID badge.
An atheist employee, who was fired after refusing to remove the tape covering an employer’s religious mission statement on the back of his company ID badge, can proceed to trial on his Title VII and state law failure-to-accommodate and retaliation claims, ruled a federal district court in Pennsylvania. Whether the accommodation would impose an undue hardship on the employer will be determined at trial (Mathis v. Christian Heating and Air Conditioning, Inc.).

Male victims of sexual harassment.
Recent cases indicate male employees are not taken as seriously as female employees when they complain of sexual harassment, but courts interpret Title VII to afford them the same protections. For example, when a male mechanic repeatedly complained that a male coworker followed him into the restroom, made sexually inappropriate comments, discussed homosexual sex acts, and touched him physically, his supervisor treated the complaint as a joke. The mechanic then complained to HR, which encouraged him to “do what was right for the company,” especially considering how a complaint over “gay rights” would appear. Perhaps unsurprisingly, a federal court sent his hostile work environment claim under Title VII to trial (Davis v. Gregory Poole Equipment Co.).

In another case, when a male maintenance worker complained that a female manager made unwanted advances, remarked on his looks, and sexted him, a safety director suggested the texts were meant for someone else and told the worker to confront her and work things out himself. After he was fired and filed suit, the director admitted he might have reacted differently if the alleged victim of harassment had been female. Though the employee’s sexual harassment claim failed because the misconduct wasn’t severe or pervasive, his retaliation claim survived summary judgment to the extent it was based on his complaint to the director, that had he been female and the harasser male, the employer would have reacted differently. The employer failed to oppose this argument (Gilley v. Kelly & Picerne, Inc. dba Alabaster Bay Apartment Homes).

Sexual harassment by wannabe mother-in-law.
In one rather unusual case, a court found that a TV station employee stated a plausible sexual harassment claim where she alleged not a single sexual advance. Instead, she claimed that a female supervisor had her fired after she rejected the ongoing attempts by the supervisor to get the employee marry her son, who was also the company’s CEO. At one point, on a business trip, the supervisor said “I’m going to be your mother one way or another. Either you will marry [the CEO] or I will marry your father and be your stepmother” (Allen v. TV One, LLC).

White employee fired for policy violation while minorities were not.
An employee at an early education center claimed her employer violated Title VII by firing her because she is white. She had asked an African-American coworker, who was also a student’s grandmother, to ask her daughter to call the school about substituting Almond Milk for regular milk with respect to the student. The employee was fired for allegedly discussing private information with someone other than a parent or guardian. Finding triable issues of fact on her race discrimination claim, the court noted evidence that African-American employees also violated policy but were not fired, and that the employee’s conduct may not actually have violated confidentiality requirements (Callaway v. Region 10 Education Service Center).

Associational discrimination – disability.
Another type of discrimination recognized under federal laws involves bias against an employee based on close association with someone who falls within a protected category (e.g., partner, child, other family member). These types of cases often occur under the ADA, which specifically prohibits discrimination against a qualified individual because of the disability of an individual with whom he or she is known to have a relationship or association. In one case, a senior VP’s note that an employee was “given special consideration” and her supervisor’s remark about her “retarded brother” suggested that her relationship with her blind and severely autistic brother-in-law was a factor in the decision to fire her, so her association discrimination claims would go to trial (Smith v. First Tennessee Bank, N.A.). In another case, an employee who alleged he was fired after missing several weeks to care for his ailing wife, who had spinal meningitis, stated a plausible claim for relief under the ADA’s discrimination by association provision (Pollere v. USIG Pennsylvania, Inc.).

Interracial couples and associational discrimination.
Another type of associational discrimination involves interracial couples. In one recent Title VII case, two employees were treated differently after they started dating because one was black and the other was white. They were told by their supervisors that their relationship was “disgusting” and “sickening” and supervisors started enforcing rules against them (like no personal calls at work, and no eating lunch at another employee’s work station) but did not enforce those rules against others (Autrey v. State of Maryland). In another case, a Native American employee who was dating an African-American man will have a jury decide whether her supervisors subjected her to a hostile work environment based on her association with her boyfriend. She claimed they repeatedly engaged in offensive and threatening behavior, including calling biracial couples “n***er lovers” and biracial kids “half n***er” (Maddox v. Grimmer Realty).

Age discrimination as between two older employees.
Under the ADEA, it is unlawful to discriminate based on someone’s older age (age 40 and over, to be specific) but not against someone who is younger than 40. In that respect, there really is no “reverse” age discrimination under the ADEA. However, the Act is still flexible in that, as between two employees who are both over the age of 40, employers cannot unlawfully favor the younger of the two if the age difference is “substantial” (most courts find 10 years or more to be significant). Yet difference in ages is not the only consideration. In one case, a border patrol agent in his mid-50’s who was denied a promotion given to four individuals in their 40’s did not have an age difference of more than 10 years, but other factors suggested age was considered, including the decisionmaker’s questions on the employee’s plan for retirement and an expressed preference for hiring “young, dynamic agents” for the new positions (France v. Johnson).

Sex stereotyping.
Discrimination based on a failure to conform to the stereotype of masculine and feminine is considered sex discrimination. In one case, evidence that harassment such as being threatened, physically restrained, punched, and poked in the anal region was directed at male employees of an oil and gas company crew who were considered “less manly” was enough to send one harassed employee’s Title VII claims to the jury (Arredondo v. Estrada). In another case, a federal court in Oregon held that a jury should decide the sex discrimination claims of a medical technician who alleged that her employment contract was not renewed because she was considered a “strong woman” who wanted to do things “her way” (Tornabene v. Northwest Permanente, P.C.). Similarly, a federal court in Michigan found triable issues of fact on a hotel housekeeper’s Title VII claim that she was terminated because she failed to conform to traditional gender stereotypes. Specifically, the supervisor allegedly said the housekeeper was too “mannish” and that the supervisor didn’t want to work with her because she “acted too manly” (Reed v. South Bend Nights, Inc. dba Best Western Hospitality Hotel).

Transgender discrimination.
Some interesting issues are emerging in discrimination cases by transgender employees. In one case, the Eleventh Circuit reversed summary judgment on a Title VII claim, finding that comments by a company owner that he was “very nervous” about a auto mechanic’s gender transition and the “possible ramifications” that it might affect business, as well as the imposition of discipline only after the mechanic announced her gender transition, raised triable questions on whether gender bias was a motivating factor in the decision to terminate the mechanic (Chavez v. Credit Nation Auto Sales, LLC). In another case involving claims that an employer fostered a hostile work environment by demanding an employee provide overly intrusive personal information on his anatomical changes, among other actions, the employer sought the same kind of information in discovery, including details on the employee’s surgeries and hormone therapy. Finding the requests “grossly out of proportion” to what the employer legitimately needed for its defense, the court denied its motion to compel production of the evidence (Roberts v. Clark County School District).

What about sexual orientation?
One question that crops up repeatedly is: Why do courts consider it to be sex discrimination to treat someone unfavorably because they do not fit sexual stereotypes, yet most courts don’t consider discrimination against homosexual individuals to be discrimination “based on sex?” Recently, the EEOC filed an amicus brief with the Eleventh Circuit in Burrows v. College of Central Florida, asserting that sexual orientation is equal to sex discrimination because: 1) it necessarily involves sex stereotyping; 2) it amounts to gender-based associational discrimination; and 3) Title VII generally bars sex-based considerations in employment and sexual orientation discrimination necessarily requires consideration of an individual’s gender.

I think the EEOC has it right in this case and, given the ways in which federal anti-discrimination laws have been interpreted in recent years, courts will likely adopt its reasoning. Interestingly, one federal court agreed with the EEOC while addressing a case under a New York City law, and it noted that a “change towards federal protection has been primarily a result of [the EEOC’s] sensitivity to the problem.” In the case at bar, the court refused to overturn a $100,000 award to a lesbian UPS employee who endured years of harassment due to her sexual orientation. It explained that appeals to the Bible could not justify management’s condoning the harassment and, noting the company’s “cavalier” attitude toward the employee’s repeated complaints, the court found plenty of evidence to support the verdict in the employee’s favor under the New York City Human Rights Law (Roberts v. United Parcel Service, Inc.).

Friday, February 05, 2016

Appellate Division holds Civil Service Law Article 14 trumps Second Class Cities Law Article 9 with respect to negotiating police disciplinary procedures


Appellate Division holds Civil Service Law Article 14 trumps Second Class Cities Law Article 9 with respect to negotiating police disciplinary procedures
City of Schenectady v New York State Pub. Empl. Relations Bd., 2016 NY Slip Op 00729, Appellate Division, Third Department

The City of Schenectady [Schenectady], under color of §133 of Article 9 of Second Class Cities Law,* announced that it would no longer be bound by negotiated police disciplinary procedures then set out in a collective bargaining agreement between Schenectady and the Schenectady Police Benevolent Association [PBA]. Schenectady advised PBA that was replacing the contract disciplinary procedure, under which an employee upon whom disciplinary charges had been served had the right of appeal to an arbitrator, and, instead, unilaterally adopted disciplinary procedures that substituted the Public Safety Commissioner for the arbitrator as the ultimate administrative disciplinary decision maker.

PBA filed an improper practice charge with Public Employment Relations Board [PERB] alleging that Schenectady violated Civil Service Law §209-a(1)(d) of the Public Employees' Fair Employment Act [Article 14 of the Civil Service Law], the so-called “Taylor Law.

Following a hearing, an Administrative Law Judge agree with PBA, finding that, under the Taylor Law, police disciplinary procedures must be the product of collective bargaining, and that the Taylor Law superseded the provisions of the Second Class Cities Law upon which Schenectady had relied in unilaterally adopting that statute's police disciplinary procedures. PERB affirmed the Administrative Law Judge's ruling, holding that that Schenectady's police disciplinary procedures were a mandatory subject of collective bargaining.**

Schenectady appealed PERB’s determination. Supreme Court upheld PERB's ruling and dismissed Schlenectday's petition.

Schenectady challenged the Supreme Courts ruling, arguing that Supreme Court erred by agreeing with PERB that the enactment of the Taylor Law superseded §133 of Article 9 of the Second Class Cities Law. The Appellate Division, noting that while this is a question of pure statutory construction and it is not dependent upon any special competence of PERB, said that “its own reading of the statutes at issue here led it to agree with Supreme Court that PERB's construction of the Second Class Cities Law, as it relates to the Taylor Law, was correct.

Indicating that the Taylor Law mandates that disciplinary procedures for all public employees be the subject of good faith collective bargaining, the Appellate Division commented that “courts have long recognized the 'strong and sweeping policy of the State to support collective bargaining under the Taylor Law.’" Citing Matter of City of New York v Patrolmen's Benevolent Assn. of the City of N.Y., Inc., 14 NY3d 46, the Appellate Division held that "the presumption is that all terms and conditions of employment are subject to mandatory bargaining."***

That said, the court commented that because of the "competing policy ... favoring strong disciplinary authority for those in charge of police forces[, w]here legislation specifically commits police discipline to the discretion of local officials," the policy favoring collective bargaining will give way to the legislatively established disciplinary procedures, citing Police Benevolent Asso. of NY State Troopers, Inc., v Division of NY State Police, 11 NY3d 96.

It was undisputed that Second Class Cities Law §133, which was enacted prior to the Taylor Law, expressly commits police discipline to the discretion of Schenectady's Public Safety Commissioner. However, said the court, the “Second Class Cities Law [Article 2] §4 states that a provision of this statute — such as Article 9 [§133] containing its police disciplinary procedures — shall apply only ‘until such provision is superseded pursuant to the municipal home rule law, was superseded pursuant to the former city home rule law or is or was otherwise changed, repealed or superseded pursuant to law.’"

The Appellate Division noted that PERB’s decision said that such language reveals "a statutorily planned obsolescence for [the Second Class Cities Law] resulting from subsequent enactment of state or local legislation." Put differently, the court explained that it viewed “the clear and unambiguous language of Second Class Cities Law §4” as providing “the best evidence that the Legislature intended to allow any or all of the provisions of the Second Class Cities Law to be supplanted by later laws applicable to the same subject matter.”

The Appellate Division concluded that Second Class Cities Law §133 does not require "that the policy favoring collective bargaining should give way" [to it] “nor did the court view the holdings in Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 and Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836) (19 NY3d 1066 to require reversal of Supreme Court's judgment.

In each of those cases, explained the court, the Court of Appeals confined its analysis to the specific language of the statutes at issue, none of which included a broad supersession provision such as the one confronting us in Second Class Cities Law §4. In view of the “clear distinction”, the Appellate Division said it could not conclude that either of these cases controls the outcome of this appeal.

* Article 9, § 133. Rules, orders and regulations, provides, in pertinent part, “The commissioner of public safety … is authorized and empowered to make, adopt, promulgate and enforce reasonable rules, orders and regulations for the government, discipline, administration and disposition of the officers and members of the police and fire departments, and for the hearing, examination, investigation, trial and determination of charges made or prepared against any officer or member of said departments for neglect of official duty or incompetency or incapacity to perform his official duties or some delinquency seriously affecting his general character or fitness for the office, and may, in his discretion, punish any such officer or member found guilty thereof by reprimand, forfeiting and withholding pay for a specified time, supension [sic] during a fixed period or dismissal from office; but no officer or member of said departments shall be removed or otherwise punished for any other cause, nor until specific charges in writing have been preferred against and served upon him, and he shall have been found guilty thereof, after reasonable notice and upon due trial before said commissioner in the form and manner prescribed by law and the rules and regulations of the department.

** See 46 PERB 3025.

*** It does not appear that the Appellate Division’s considered Civil Service Law §76.4, which provides, in pertinent part, that “Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter.” It could be argued that this language indicates a legislative intent that negotiating disciplinary procedures to “supplement, modify or replace” §§75 or 76 of the Civil Service Law be permissive rather than mandatory [or prohibited] subjects of collective bargaining within the meaning of the Taylor Law [Article 14 of the Civil Service Law].

The decision is posted on the Internet at:

Thursday, February 04, 2016

From the Blogs - Posted by Employment Law News, WK WorkDay


From the Blogs - Posted by Employment Law News, WK WorkDay
A service provided by Wolters Kluwer Legal & Regulatory U.S. [Internet links highlighted in color]

The Wolters Kluwer Legal Scholar program, in its third year, allows current law students to compete for the chance to have their work published in a Wolters Kluwer publication. Wolters Kluwer will accept submissions through Friday, April 1, 2016

Posted: 02 Feb 2016 06:24 AM PST

By Dave Strausfeld, J.D.



Posted: 01 Feb 2016 06:16 AM PST



Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

The Disability Benefits E-book: - This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing 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

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