Letter of resignation and settlement agreement contingent on appointing authority’s approval may not be rescinded while approval is pending

Letter of resignation and settlement agreement contingent on appointing authority’s approval may not be rescinded while approval is pendingMatter of Civil Serv. Empls. Assn. Inc., A.F.S.C.M.E., Local 1000, A.F.L.-C.I.O. v Baldwin Union Free School Dist., 2010 NY Slip Op 20091, decided on February 3, 2010, Supreme Court, Nassau County, Justice Daniel Palmieri

Francesco Pignataro filed an Article 78 petition seeking a court order allowing him to revoke his letter of resignation and settlement agreement he submitted to his former employer, the Baldwin Union Free School District.

While two arbitrations involving grievances concerning his ability to perform the duties of his position were pending, Pignataro and his CSEA representative signed an agreement with the District resolving both grievance – [1] his termination because of his absence from work and [2] his claim for accrued sick leave. The agreement was subject to the approval of the Board of Education.

The agreement, in pertinent part, stated that: (1) it was in settlement of the grievance for available leave accruals; (2) Pignataro would be paid $50,000 for accumulated leave days from October 1, 2007; and (3) Pignataro "shall" submit a letter of resignation for purpose of retirement, to be effective as of the close of business on August 12, 2009.

Significantly, the agreement also stated that it was subject to Board approval, and if the Board "does not approve this agreement, such resignation shall be deemed withdrawn, and Mr. Pignataro shall remain an employee of the District.*

In a separate document, dated July 16, 2009, Pignataro signed a letter of resignation stating that "I hereby submit my letter of resignation from the position of custodian for the Baldwin Schools, effective at the close of business on August 12, 2009. This resignation is contingent upon full execution and Board approval of a stipulation of settlement with the District, dated August 12, 2009."

A few days later Pignataro sent a letter to the district stating that he rescinded his resignation and the "proposed settlement". Specifically, Pignataro said that the resignation “is no longer effective, that he did not agree to waive his rights and did not agree to the terms of the retirement proposal.” Notwithstanding this, on August 12, 2009 the Board, by its President, signed the settlement agreement, and thereby refusing to permit Pignataro to “withdraw his resignation”** and repudiate the settlement agreement.

Justice Palmieri said that the question before him “is a simple one: was the agreement [Pignataro] signed subject to unilateral recession by Pignataro?”

The court ruled that the settlement agreement was binding on Pignataro, and under its terms he was not able to repudiate the settlement, rescind his resignation nor revive his employment with the District.

In addition, the decision states that “by signing the agreement settling his leave accrual grievance, and resigning as a part thereof, Pignataro waived any due process rights he may have had under the Civil Service Law or the [collective bargaining agreement] regarding his separation from District employment.” Accordingly, under the terms of the settlement agreement, said Justice Palmieri, Pignataro and CSEA were bound to all the other terms of that agreement as well, “including the release of the Board, the district and its employees from the current and any other claims flowing from Pignataro’s alleged right to salary and benefits.”

* The agreement provided that in the event the Board rejected the agreement, Pignataro's leave entitlements would be restored to him, retroactive to July 17th 2009"; the District, Board, and its employees would be released from "all actions, suits, charges, claims, grievances, etc.,” and all pending arbitrations and grievances filed on behalf of Mr. Pignataro shall be withdrawn with prejudice."

** Typically once the employee has delivered his or her resignation to the appointing authority or its designee, he or she may not withdraw or rescind the resignation without the approval of the appointing authority. For example, 4 NYCRR 5.3(c), which applies to employees of the State as an employer provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.” Many local civil service commissions and personnel officers have adopted a similar rule.

COLA pension increases affect Section 207-a retirement benefits

COLA pension increases affect Section 207-a retirement benefits
Wise v Jennings, 290. AD2d 702, 703, lv denied 97 NY2d 612 App. Div., 3rd Dept.

Section 207-a of the General Municipal Law provides that firefighters who retire after suffering a work-connected disability are to receive employer-paid supplements to their retirement allowance until their mandatory age of retirement.

The amount of the supplement: the difference between their retirement allowance and the amount that they would have earned as active firefighters had they not retired for disability, adjusted for negotiated salary increases.

When the legislature provided for an automatic cost of living adjustment [COLA] to retirees, including those retired for accidental or service connected disability, the City of Albany advised its retirees receiving Section 207-a supplements that it would recompute and reduce their supplements to reflect the increase they received as a result of the COLA adjustment. William Wise, a retired City of Albany firefighter and President of the Albany Permanent Professional Firefighters Retirees' Association, sued the City contending that the City could not withholding any portion of the supplemental income payments as an adjustment for the amount that they receive as a COLA increase. A Supreme Court justice dismissed Wise's petition and he appealed.

Pointing out that General Municipal Law Section 207-a was intended only to affect the source, not the amount, of payments made to disabled firefighters, the Appellate Division affirmed the lower court's ruling.

The Appellate Division said that COLA's legislative history demonstrates that it constituted a clear policy directive to offset the negative effects of inflation experienced by public retirees whose pension benefits were eroded as a result of annual increases in the cost of living without commensurate increases in benefits. Accordingly, the court reasoned, "[a]s a clear pension supplement, we agree that since the payment of the adjustment is dependent upon the right to receive a disability retirement allowance, the COLA adjustment must be found to be generated through that income stream."

As Section 207-a only permits the employer to supplement the "difference between the amounts received under such allowance or pension and the amount of the firefighters' regular salary or wages [had he or she remained an active firefighter]," the deduction of an amount equal to the COLA adjustment from the firefighters' Section 207-a supplement was proper. This determination, said the court, is consistent with the underpinnings of Section 207-a, which is to ensure that permanently disabled firefighters receive an amount equal to that of active firefighters holding the same position and rank with only the income source and not the amount affected.

Enforcing disciplinary settlement agreements

Enforcing disciplinary settlement agreements
Lyons v Whitehead, 2 AD3d 638

The Appellate Division's decision in the Lyons case demonstrates the importance of making certain that the terms and conditions of a disciplinary settlement agreement clearly indicate the expectations of the parties.

Carol Lyons, an employee at the Letchworth Developmental Disabilities Service, and James J. Whitehead, the Director of Letchworth, had entered into a disciplinary settlement agreement that provided that Lyons would participate in a treatment program to treat her abuse of prescription drugs. The settlement required Lyons to follow the program's attendance requirement, and to complete the program.

The agreement also provided that Lyons would be placed on "general probation status" for one year, and that her employment could be terminated for a violation of her probation without any further hearing "except for time and attendance infractions".

Lyons failed to attend a scheduled "medication course." Whitehead viewed this as a breach of the Settlement Agreement and terminated Lyons' employment. Acting on behalf of Lyons, the Civil Service Employee's Association, Inc., sued. They asked for a court order reinstating Lyons to her position. CSEA argued that Lyons' failure to attend the medication course was a "time and attendance infraction" and thus she could not be summarily terminate under the terms of the Settlement Agreement.

Although the Supreme Court directed that Lyons be restored to her employment, the Appellate Division reversed and remanded the case to the lower court to determine whether Lyons' failure to attend the "medication course" was a "time and attendance infraction" under the Settlement Agreement.

The Appellate Division ruled that "[b]ecause the Settlement Agreement is a contract between the parties, it must be construed according to ordinary contract law." Accordingly, the court must "determine the intention of the parties as derived from the language employed in the contract", and it "should strive to give a fair and reasonable meaning to the language used," citing Abiele Construction v New York City School Construction Authority, 91 NY2d 1.

It is clear that the appellant could terminate Lyons' employment for a violation of her probation, "except for time and attendance infractions." Was Lyons' absence from the "medication course" a breech of the Settlement Agreement?

Whitehead maintained that attending the medication course "was part of the treatment program" that Lyons agreed to attend as part of the Settlement Agreement. CSEA, on the other hand, argued that it was "a mandatory course for all employees working at [Lyons'] grade and title for recertification to perform the duties of dispensing medication to patients" and thus her absence was a "time and attendance" problem excluded under the Settlement Agreement.

The court decided that the nature of the medication course could not be determined from the record and therefore it could not decide whether or not Lyons' failure to attend it was a "time and attendance infraction" or a breach of the disciplinary settlement agreement.

Thus, said the court, "the matter must be remitted to the Supreme Court, for a hearing on the question of whether the medication course was the same as the treatment program, and if not, whether her absence falls within the category of "time and attendance infractions." The Appellate Division said that the lower court "had to make a new determination" based on its answer to these questions.

The basic idea underlying the Lyons decision is that the court must interpret and apply the terms set out in a disciplinary settlement agreement precisely. The decision in Taylor v Cass, 505 NYS2d 929, illustrates this point.

Taylor, a former Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a six-month disciplinary probation.

The disciplinary settlement provided that the County could terminate Taylor without any hearing if, in the opinion of Taylor's superior, Taylor's job performance was "adversely affected by his intoxication on the job during the next six months."

Taylor, while serving this six-month disciplinary probationary period, was terminated without a hearing after what his supervisor described as Taylor's "failing to give a fair day's work" and "sleeping during scheduled working hours".

Taylor challenged his dismissal and won reinstatement with back pay. Why? The Appellate Division decided that Taylor's dismissal was improper because he was not summarily terminated for the sole reason specified in the disciplinary settlement agreement: intoxication while on the job.

Defamation via the Internet

Defamation via the Internet

Firth v State of New York, NYS Court of Appeals, 98 NY2d 365

From time to time, an individual will sue a public employer contending that he or she was defamed because of the employer's dissemination of information concerning his or her performance of official duties that the individual considers demeaning or embarrassing.

Among the most common "defamation" claims are those involving an individual alleging that internal communications between administrators or between an employee and an administrator concerning the worker contains libelous or defamatory statements.

Murphy v Herfort, 428 NYS2d 117, is an example of litigation resulting from communications between administrators.

Missek-Falkoff v Keller, 545 NYS2d 360, is an example of a case in which one employee sued another employee claiming that the contents of a memorandum from the second employee to a superior concerning a "problem" with the coworker constituted libel.

Allegations of defamation may arise following an employee's former employer supplying information to a prospective employer of the individual in response to a request for "references." Buxton v Plant City, 57 LW 2649, provides an example of this type of complaint.

As a general rule, unless the individual is able to demonstrate "publication" and prove "malice," the courts usually dispose of such cases involving a public employer by applying the doctrine of "qualified immunity."

The electronic age has provided an additional potential source of litigation based on allegations that the publication of certain information constitutes libel.

Many public jurisdictions maintain a "web-site" to disseminate information to the public. The Firth decision concerns a situation where placing a report critical of an individual resulted in the individual suing the public entity for defamation.

George Firth, formerly employed by the New York State Department of Environmental Conservation as its Director of the Division of Law Enforcement, sued the State, alleging that it defamed him when it placed a report issued by the Office of the State Inspector General critical of Firth's managerial style and the procedures he used in procuring weapons for the agency on State-maintained web-sites available to the public.

At a press conference, the Office of the State Inspector General distributed a report entitled The Best Bang for Their Buck, in which Firth's management style was criticized. On the same day, the State Education Department posted an executive summary of the report with links to the full text of the report on its Government Locator Internet site.

As characterized by the Court of Appeals, the central issue in Firth's appeal concerned how "defamation jurisprudence, developed in New York courts in connection with traditional, i.e., printed, mass media communications, applies to communications in a new medium -- cyberspace -- in the modern Information Age" insofar as the statute of limitations for bringing such a law suit is concerned.

The court's conclusion: the single publication rule is applicable to allegedly defamatory statements that are posted on an Internet site and an unrelated modification of information displayed in another part of the same Web site does not constitute a republication for the purpose of determining the one-year statute of limitations for defamation actions set out in Section 215(13) of the Civil Practice Law and Rules.

In effect, the statute of limitations begins to run when the statement alleged to have disparaged the individual is first made available on the Internet.

Although "republication" will "retrigger" the running of the statute of limitations, the Court of Appeals ruled that "[t]he mere addition of unrelated information to a Web site cannot be equated with the repetition of defamatory matter" as a separate publication.

Consider another aspect of the electronic distribution of information electronically -- the use of E-mail as a vehicle for transmitting statements alleged to disparage an individual. This issue was not addressed by the court in the Firth decision.

Clearly the date on which the E-mail was initially transmitted would trigger the running of the statute of limitations in such cases. But what is the effect of the "forwarding" of E-mail?

Will the courts consider "forwarding" an E-mail by the recipient to another individual to be a "republication" for the purposes of determining the timeliness of an action? Still another element to consider -- may the "forwarder" be sued for the alleged libel?

If the courts deem each "forwarding" [and, perhaps, the "forwarder"] of an E-mail to be an independent and unique "republication" for the purposes of determining the running of the statute of limitations and liability, it may be that alleged disparagement by E-mail may never become stale insofar as bringing a viable law suit is concerned. Undoubtedly these issues will be presented to the courts for resolution because of the proliferation electronic communication and dissemination of information in the workplace.

Ethics and lobbying reforms

Ethics and lobbying reforms

Governor Eliot Spitzer, Lieutenant Governor David Paterson and legislative leaders have agreed upon sweeping ethics and lobbying reforms. The agreement sets higher ethical standards for public officials, significantly strengthens penalties for violations, establishes an independent public integrity panel and reorganizes the Legislative Ethics Committee.

The agreement addresses concerns such as:

Lobbying Reforms – Prohibits all gifts from lobbyists and their clients of more than a nominal value, including travel, lodging and other expenses, and broadens the types of lobbying activities that lobbyists must disclose;

Gifts – Prohibits all gifts of more than a “nominal value” from non-lobbyists to state officials where such gifts may give the appearance of attempting to influence the official;

Honoraria – Bans virtually all honoraria for statewide elected officials, agency heads and legislators;

Anti-Nepotism Policy – Prohibits state employees from participating in any personnel decision or contracting matter involving a relative.

Political Hiring – Bars non-legislative employees from asking about the affiliation, contributions or voting records of prospective employees;

Soliciting Contributions – Prohibits non-legislative employees from using their authority or influence to “compel or induce” any other employee to make political contributions;

Running for Elective Office – Prevents agency heads from becoming a candidate for any compensated elective office unless they resign or take an unpaid leave of absence;

Taxpayer-Financed Advertisements – Prohibits elected government officials and candidates for elected local, state or federal office from appearing in taxpayer-funded advertisements; and

Revolving Door – Closes the so-called “revolving door” loophole by prohibiting former legislative employees from directly lobbying the Legislature for two years, and expands the revolving door restrictions for Executive Chamber employees to preclude appearances before any state agency.

The agreement also strengthens penalties for violations of the state Public Officers Law and state Lobbying Law. The maximum civil penalty for public officers who commit ethics violations will be increased from $10,000 to $40,000 plus the value of any associated gain. The agreement also provides that lobbyists who repeatedly flout lobbying laws will be subject to suspension.

Section 107 of the Civil Service Law bars certain political activities by public officers and employees

Civil Service Law §107 sets out a number of prohibitions against certain political activities including barring (1) recommendations based on political affiliations; (2) inquiries concerning the political opinions or affiliations of any person; and (3) requiring contributions to any political fund or rendering any political service as a condition for employment.

The text of §107 is available on NYPPL’s Internet Archives at:

http://nypublicpersonnellawarchives.blogspot.com/2007/01/prohibition-against-certain-political.html

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Governor Spitzer has issued an Executive Order setting out ethics guidelines for State officers and employees [6 Executive Order 1]. The text of 6 EO 1 is available on NYPPL’s Internet Archives at:

http://nypublicpersonnellawarchives.blogspot.com/2007/01/executive-order-61-ethical-guidelines.html

Some government bodies, such as the Office of Court Administration, have earlier adopted “anti-nepotism” policies. 22 NYCRR 100.3(B)(3) provides, in pertinent part, as follows:

…A judge shall avoid nepotism and favoritism … A judge shall not appoint or vote for the appointment of any person as a member of the judge's staff or that of the court of which the judge is a member, or as an appointee in a judicial proceeding, who is a relative within the fourth degree of relationship of either the judge or the judge's spouse or the spouse of such a person. A judge shall refrain from recommending a relative within the fourth degree of relationship of either the judge or the judge's spouse or the spouse of such person for appointment or employment to another judge serving in the same court. A judge also shall comply with the requirements of Part 8 of the Rules of the Chief Judge (22 NYCRR Part 8) relating to the appointment of relatives of judges. Nothing in this paragraph shall prohibit appointment of the spouse of the town or village justice, or other member of such justice's household, as clerk of the town or village court in which such justice sits, provided that the justice obtains the prior approval of the Chief Administrator of the Courts, which may be given upon a showing of good cause.

Board member to be reimbursed his legal expenses in objecting to a school district efforts to remove him from office

Board member to be reimbursed his legal expenses in objecting to a school district efforts to remove him from office

Application of the BOARD OF EDUCATION OF THE ELMONT UNION FREE SCHOOL DISTRICT for the removal of Aubrey Phillips as a member of the Board of Education of the Elmont Union Free School District.

Decision No. 15,783

(July 19, 2008)

Ingerman Smith, LLP, attorneys for petitioner, Susan E. Fine, Esq., of counsel

Black & Pennington Law Office, attorneys for respondent, Dale A. Black-Pennington, Esq., of counsel

MILLS, Commissioner.--Petitioner, Board of Education of the Elmont Union Free School District (“petitioner” or “board”), seeks the removal of Aubrey Phillips (“respondent” or “Phillips”) from his position as a member of the board. The application must be denied.

Phillips has continuously been a member of the board since 1999 and his current term expired on June 30, 2008.

On June 13, 2005, the board unanimously voted to appoint a new superintendent to the district. Approximately one year later, the board approved a $23,000 salary increase for the superintendent. Thereafter, a local area newspaper, published an article relating to the superintendent’s salary increase. In essence, the article noted that Phillips said that the superintendent’s salary was lower than what the board was willing to pay other candidates and that Phillips, two former trustees and a current trustee believed the superintendent was the “best man for the district.”

Following the publication of this article, the board authorized its special counsel to begin an investigation into allegations of Phillips’s breach of confidentiality of executive session discussions for the purpose of publication. This appeal ensued.

Petitioner alleges that Phillips breached his fiduciary duty to the board by divulging confidential information acquired during executive sessions to the press. Specifically, petitioner asserts that these discussions involved the board’s decision-making process for its selection of a new superintendent and the salary to be offered. By disclosing this confidential information, petitioner asserts that Phillips undermined the board’s position in future salary negotiations and hampered the board’s ability to conduct meaningful discussions in executive session. As a result, petitioner asserts that Phillips violated both his oath of office and General Municipal Law §805-a. Petitioner requests that I remove Phillips from the board because his conduct was both intentional and willful.

Phillips maintains that his comments to the reporter represented his personal and individual opinion and did not contain the content of any confidential discussions made by actual board members during any executive session. Phillips also asserts that the petition is deficient because it fails to provide the specific substance of any conversations Phillips disclosed and/or the time(s), date(s) and place(s) of the executive sessions where such discussions took place. Phillips also states that he made the comments to the reporter in good faith, after reviewing opinions of the Committee on Open Government and the Commissioner of Education, and that petitioner has failed to demonstrate that his actions were intentional or willful. Finally, Phillips requests a certificate of good faith pursuant to Education Law §3811.

Initially, I note that respondent’s answer does not comply with §275.12 of the Commissioner’s regulations in that it neither admits nor denies the specific allegations of the petition. In spite of this defect, and in the absence of any prejudice, I have considered the arguments made in the answer (see Appeal of Wakker, 43 Ed Dept Rep 196, Decision No. 14,969).

Nevertheless, the application must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350). By letter dated June 12, 2008, the district confirmed that respondent’s term, as a board member, expired on June 30, 2008. Therefore, the relief petitioner requests -- removal of respondent from the board -– is not possible, and is moot.

Although the appeal must be dismissed one administrative matter remains. Respondent has requested that I grant him a certificate of good faith pursuant to Education Law §3811(1). Such certification is solely for the purpose of authorizing the board to indemnify them for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of their duties as trustees. It is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith (Application of Schenk, 47 Ed Dept Rep 375, Decision No. 15,729; Applications of Lilly, 47 id. 307, Decision No. 15,705; Application of Berman, 46 id. 378, Decision No. 15,537). Based on the evidence in the record before me, I find that respondent is entitled to receive a certification of good faith.

I remind respondent, however, that a school board member takes an oath of office to uphold the law and faithfully discharge his duties and that a board member has a “fiduciary obligation to act constructively to achieve the best possible governance of the school district” (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; N.Y. State Constitution Art. XIII, §1; Public Officers Law §10). Further, General Municipal Law §805-a(1)(b) prohibits a board member from disclosing confidential information obtained at an executive session of a board meeting (see Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Balen, 40 id. 250, Decision No. 14,474; Appeal of Henning, 33 id. 232, 234, Decision No. 13,035). Care must be taken to preserve the confidentiality of information obtained at a properly convened executive session.

THE APPEAL IS DISMISSED.

Changing the beneficiary for NYSERS death benefits

Changing the beneficiary for NYSERS death benefits

Matter of Russell Krysa v New York State & Local Retirement Sys., 2008 NY Slip Op 06499, decided on July 31, 2008, Appellate Division, Third Department

Chiacchia & Fleming, L.L.P., Buffalo (Christen A.
Pierrot of counsel), for petitioner.
Andrew M. Cuomo, Attorney General, Albany
(William E. Storrs of counsel), for New York State and Local
Retirement System, respondent.

MEMORANDUM AND JUDGMENT



Malone Jr., J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent New York State and Local Retirement System which denied petitioner's application for ordinary death benefits.

During his employment with the Town of Wheatfield Highway Department in Niagara County in February 2004, Edward Mettler (hereinafter decedent) executed a form (hereinafter the 2004 designation form) designating his former spouse, his two children and his girlfriend, respondent Robin Douglas, as the primary beneficiaries of his ordinary death benefit with respondent New York State and Local Retirement System. On that same day, decedent executed a will in which he, among other things, devised his residence to Douglas. The following year, the relationship between decedent and Douglas ended and, on February 15, 2005, decedent drafted a new will that eliminated any reference to Douglas. He also executed a new designation form in which he removed Douglas as a primary beneficiary of his ordinary death benefits and added petitioner in her place (hereinafter the 2005 designation form).

Decedent then committed suicide on February 18, 2005 and the Retirement System [*2]received the 2005 designation form on February 22, 2005. After decedent's counsel advised the Retirement System of decedent's death and sought to confirm that the 2005 designation form had taken effect, the Retirement System responded that, inasmuch as the 2005 designation form had been received after the date of decedent's death, it could not be accepted and, therefore, the payment of decedent's death benefits would be made to those beneficiaries named in the 2004 designation form, including Douglas. Petitioner opposed this determination and, after redetermination hearings were conducted, a Hearing Officer concluded that the 2004 designation form was valid at the time of decedent's death and, therefore, petitioner was not eligible to receive benefits. The Retirement System ultimately adopted the Hearing Officer's findings and denied petitioner's application for death benefits. Consequently, petitioner commenced the instant CPLR article 78 proceeding challenging that determination.

The Retirement and Social Security Law provides that ordinary death benefits are payable to beneficiaries who have been nominated by the member of the Retirement System to receive them (see Retirement and Social Security Law § 60 [c]). Specifically, "'[t]o be effective, such nomination must be in the form of a written designation, duly acknowledged and filed with the comptroller for this specific purpose'" (Matter of Nisnewitz v Regan, 207 AD2d 605, 606 [1994], quoting Retirement and Social Security Law § 60 [c]). Pursuant to Retirement and Social Security Law § 19, a "document [is] deemed filed on the date of mailing" only if it was sent by certified mail, return receipt requested. Otherwise, the filing "only occurs upon actual delivery to and receipt by [the Retirement System]" (Matter of Jarek v McCall, 268 AD2d 654, 655 [2000]; see Retirement and Social Security Law § 19; Matter of McBride v Regan, 125 AD2d 797, 798 [1986]; see also Matter of Klein v Regan, 165 AD2d 944, 945 [1990]; Matter of Robillard v Levitt, 44 AD2d 611, 612 [1974]).

Here, it is uncontroverted that the 2005 designation form was mailed by first-class mail and that decedent's death occurred before the Retirement System received it on February 22, 2005. As the filing of this form did not occur until after decedent's death, the 2004 designation form designating Douglas as a beneficiary was still valid at the time of decedent's death. Consequently, the Retirement System's denial of petitioner's application for benefits was both rational and supported by substantial evidence.

Petitioner argues alternatively that decedent's ordinary death benefits should have been conveyed to decedent's estate in light of the evidence demonstrating that, at the time of his death, decedent's testamentary intent was to replace Douglas with petitioner as a designated beneficiary. However, it is well settled that the Retirement System "has no discretion to pay the death benefit to any person other than the duly designated beneficiary" (Matter of Oro v New York State Employees' Retirement Sys., 142 AD2d 830, 831 [1988]; see Matter of Nisnewitz v Regan, 207 AD2d at 606; Matter of Berlangero v New York State & Local Employees' Retirement Sys., 162 AD2d 796, 797 [1990]).

Mercure, J.P., Rose, Kane and Kavanagh, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

Employee terminated for violating employer’s written policy ineligible for unemployment insurance benefits

Employee terminated for violating employer’s written policy ineligible for unemployment insurance benefits

Matter of Pagan v Commissioner of Labor, 2008 NY Slip Op 06414, Decided on July 24, 2008, Appellate Division, Third Department

Mirkin & Gordon, P.C., Great Neck (Matthew A.
Steele of counsel), for appellant.
Andrew M. Cuomo, Attorney General, New York City
(Linda D. Joseph of counsel), for respondent.


MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 20, 2007, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

In 2006, claimant was employed as a community coordinator for the New York City Housing Authority when he accepted a designation as a Democratic Party candidate for the State Assembly. His employment was subsequently terminated for violating a written policy of the employer prohibiting running for political office in a partisan election. It is well settled that "[v]iolation of an employer's reasonable policies may constitute disqualifying misconduct" (Matter of Rizzo [Commissioner of Labor], 307 AD2d 573, 573 [2003]; see Matter of Kaplan [Multimedia Entertainment Commissioner of Labor], 28 AD3d 1045, 1046 [2006]; Matter of Bastian [Commissioner of Labor], 19 AD3d 915, 916 [2005]; Matter of Letcher [Wal-Mart Stores Commissioner of Labor], 272 AD2d 710, 710 [2000]; Matter of Block [Commissioner of Labor], 249 AD2d 870, 870 [1998]). Here, under guidelines established by the employer to assure compliance with the Hatch Act (see 5 USC § 1501 et seq.) and the City of New York Conflicts of Interest Board Rules, an employee is prohibited from running as a candidate for elective public office in a partisan election. The record demonstrates that claimant was aware of the employer's guidelines prior to his termination and he was afforded an opportunity to comply with the policy before any adverse action was taken by the employer. Accordingly, substantial evidence supports the Board's determination finding claimant guilty of disqualifying misconduct (see Matter of Rizzo [Commissioner of Labor], 307 AD2d at 573; Matter of Block [Commissioner of Labor], 249 AD2d at 870).

Mercure, J.P., Spain, Rose, Kane and Kavanagh, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Retired teacher ruled entitled to enroll new spouse in the District’s health insurance plan under the terms of the collective bargaining agreement

Retired teacher ruled entitled to enroll new spouse in the District’s health insurance plan under the terms of the collective bargaining agreement

Matter of Bower v Board of Educ., Cazenovia Cent. School Dist., 2008 NY Slip Op 06418, Decided on July 24, 2008, Appellate Division, Third Department

Mitchell, Goris & Stokes, L.L.C., Cazenovia
(Brendan J. Reagan of counsel), for appellants.
James R. Sandner, New York State United Teachers
Association, Latham (James D. Bilik of counsel), for
respondent.

MEMORANDUM AND ORDER



Lahtinen, J.

Appeal from an order and judgment of the Supreme Court (McDermott, J.), entered September 14, 2007 in Madison County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, among other things, granted petitioner's cross motion for summary judgment.

Petitioner retired from his teaching position with respondent Cazenovia Central School District in June 2004 and, at that time, he was enrolled as an individual participant in the district's group health insurance plan. He married in June 2006 and requested the district to change his health insurance to family coverage so that his wife would be covered. The district refused, taking the position that a retired teacher is not permitted to change his or her health insurance coverage. Petitioner commenced this proceeding contending that the applicable collective bargaining agreement permitted him to change his coverage and, also, that the district's refusal ran afoul of the statutory moratorium against reducing health insurance benefits of retirees unless there was a corresponding reduction for active employees (see L 2006, ch 27; see generally Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134, 1134-1135 [2005]). The parties moved for summary judgment. Supreme Court denied respondents' motion and granted petitioner's cross motion, finding that petitioner had the right under the terms of the collective bargaining agreement to change his health insurance coverage to include his new spouse. Respondents appeal.

Respondents contend that under the terms of the agreement, petitioner was not permitted to change his coverage following retirement. "In cases of contract interpretation, it is well settled that when parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms" (South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272, 277 [2005] [internal quotation marks and citations omitted]; see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]; Bauersfeld v Board of Educ. of Morrisville-Eaton Cent. School Dist., 46 AD3d 1003, 1005 [2007], lv denied 10 NY3d 704 [2008]). The agreement "should be read as a whole to ensure that undue emphasis is not placed upon particular words and phrases" (Bailey v Fish & Neave, 8 NY3d 523, 528 [2007]; see Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352, 358 [2003]). Extrinsic evidence may not be considered unless it is determined as a matter of law that the agreement is ambiguous (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]).

Article XXII of the agreement provides that "[a]ll bargaining unit personnel currently employed or retired from [the district] who are legally eligible may participate in the . . . health insurance program," and there is no dispute that petitioner was eligible under the terms of the agreement. The specifics regarding the health insurance for eligible individuals are contained in Appendix G to the agreement, which sets forth individual coverage and family coverage as the "two types of enrollment" available (cf. Odorizzi v Otsego N. Catskills Bd. of Coop. Educ. Servs., 307 AD2d 490, 491 [2003] [where agreement had separate retiree coverage provision]). A section entitled "ENROLLMENT CHANGES" recognizes that "[c]hanges in your family status may make it necessary or desirable for you to change the coverage for which you are enrolled," and states, in relevant part, that "[y]ou may request a change from individual coverage to [f]amily coverage . . . [t]o provide coverage for a newly acquired spouse." There is no indication that the "you" in this provision was not intended to include retired employees. Although Appendix G has a section denoted "RETIREMENT," the purpose of that section is to set forth the different length of service requirements (depending on whether the individual was hired before or after April 1, 1975) to qualify for continuing coverage during retirement. That section does not purport to lock in the type of coverage at the time of retirement. There is neither a specific definition nor a meaningful delineation of employees and retirees in Appendix G (cf. id. at 490-491). Reading the relevant provisions as a whole, we agree with Supreme Court that the agreement permitted petitioner to add his spouse to his health insurance.

The issue regarding the applicability of the statutory moratorium is academic.

Spain, J.P., Kane, Malone Jr. and Stein, JJ., concur.

ORDERED that the order and judgment is affirmed, without costs.

Appellate Division rules arbitrator exceed his authority by considering the terms of an earlier stipulation of settlement in resolving a grievance

Appellate Division rules arbitrator exceed his authority by considering the terms of an earlier stipulation of settlement in resolving a grievance brought pursuant to a subsequently negotiated CBA
Matter of Local 2841 of N.Y. State Law Enforcement Officers Union, Afscme, Afl-cio v City of Albany, 2008 NY Slip Op 06421, Decided on July 24, 2008, Appellate Division, Third Department

Ennio J. Corsi, Law Enforcement Officers Union #82,
Albany (Matthew P. Ryan of counsel), for appellant.
John J. Reilly, Corporation Counsel, Albany (Jeffery
V. Jamison of counsel), for respondents.

MEMORANDUM AND ORDER


Cardona, P.J.

Appeal from a judgment of the Supreme Court (Hard, J.), entered July 9, 2007 in Albany County, which, among other things, granted respondents' cross application pursuant to CPLR 7511 to vacate an arbitration award.

In April 2006, petitioner filed a grievance on behalf of its members who were employed by respondent Albany Police Department. The grievance asserted that certain terms of the 2002-2005 collective bargaining agreement (hereinafter CBA) and a 2001 stipulation of settlement with respondent City of Albany were violated when the City denied union or legal representation to employees questioned as a witness to an event without affording them an opportunity to consult with an attorney or union representative prior to and during an interview with the Office of Professional Standards. The dispute was submitted to arbitration and, following a hearing, the arbitrator found that the 2001 stipulation providing for employee representation had not been modified or rescinded by any writing of the parties. Furthermore, the arbitrator deemed the 2001 stipulation of settlement to be a rule of the Albany Police Department and, therefore, concluded that the City violated the terms of the CBA by not complying with that rule.

Thereafter, petitioner commenced this proceeding pursuant to CPLR 7510 to confirm the arbitrator's award. Respondents cross-petitioned to vacate the award on the ground that the arbitrator exceeded his authority, and they requested a rehearing before a new arbitrator. Supreme Court, finding that the arbitrator exceeded his authority by amending the parties' CBA, granted respondents' cross petition and this appeal ensued.

Supreme Court's judgment should be affirmed. An arbitrator's award is afforded judicial deference and will not be disturbed by a court absent those limited circumstances where the award "is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of Town of Callicoon [Civil Serv. Empls. Assn., Town of Callicoon Unit], 70 NY2d 907, 909 [1987]; see Matter of Albany County Sheriffs Local 775 of N.Y. State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO [County of Albany], 27 AD3d 979, 980 [2006]). Although an arbitrator's interpretation of contract language is generally beyond the scope of judicial review (see Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO [State of New York], 15 AD3d 748, 750 [2005]; Matter of J.M. Weller Assoc. [Charlebois], 169 AD2d 958, 959 [1991]), where a benefit not recognized under the governing CBA is granted, the arbitrator will be deemed to have exceeded his or her authority (see Matter of Kocsis [New York State Div. of Parole], 41 AD3d 1017, 1019 [2007]; Matter of New York State Correctional Officers & Police Benevolent Assn., Inc. [State of New York], 13 AD3d 961, 962-963 [2004]).

Here, the 2001 stipulation of settlement was entered into by the parties in an effort to resolve various grievances filed in 1997 and 1998 under the former CBA. Specifically, that stipulation of settlement permitted union or legal representation at the request of an employee "when [being] interviewed by or in the presence of the Office of Professional Standards" and, by its terms, could not be modified or rescinded absent a subsequent writing of the parties. Thereafter, the parties negotiated and executed a new CBA for 2002-2005, which, while providing for representation in certain instances, neither incorporated the 2001 stipulation of settlement into the new contract nor otherwise specifically provided for union or legal representation when an employee is questioned as a witness in an investigation.

We note that in the arbitration hearing the parties not only contested whether the stipulation of settlement had been violated, respondents also, in fact, challenged whether that stipulation of settlement was still in effect, claiming that it had been superceded by the subsequent execution of the 2002-2005 CBA. Under the circumstances herein, the 2001 stipulation of settlement expired upon the execution of the new CBA (see generally Matter of Board of Educ. of E. Meadow Union Free School Dist., E. Meadow, N.Y. v East Meadow Teachers Assn., 46 AD3d 810 [2007]; County of Nassau v Adjunct Faculty Assn. of Nassau Community Coll., 100 AD2d 924 [1984], affd 65 NY2d 672 [1985]). Inasmuch as the 2002-2005 CBA represents the entire agreement between the parties concerning the grievance at issue, it was not proper for the arbitrator to rely on the 2001 stipulation of settlement to confer upon employees being interviewed as witnesses the benefit of representation. Accordingly, the arbitrator exceeded his power in amending the terms of the CBA by considering that stipulation of settlement in contravention of an expressed term of the CBA which prohibited amending, modifying or deleting any provision thereof (see Matter of Kocsis [New York State Div. of Parole], 41 AD3d at 1019-1020; Matter of New York State Correctional Officers & Police Benev. Assn., Inc., 13 AD3d at 962-963; Matter of New York City Tr. Auth. v Patrolmen's Benevolent Assn. of N.Y. City Tr. Police Dept., 129 AD2d 708, 708-709 [1987], appeal dismissed 70 NY2d 719 [1987]).

We have considered petitioner's remaining contentions and find them to be unpersuasive.

Peters, Spain, Carpinello and Stein, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

Discrimination based on disability requires a showing that the essential duties can be performed with a reasonable accommodation

Discrimination based on disability requires a showing that the essential duties can be performed with a reasonable accommodation

Staskowski v Nassau Community Coll., 2008 NY Slip Op 06369, Decided on July 22, 2008, Appellate Division, Second Department

DECISION & ORDER

In an action to recover damages for employment discrimination on the basis of disability in violation of Executive Law § 296, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), dated April 10, 2007, as granted the motion of the defendants Nassau Community College, John C. Ostling, Linda Susman, Ruth Goldfarb, Esther Bogin, Fran Gulinello, Jill Burgreen, Jill Cohen, and Ann Muth pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them and denied her cross motion for leave to serve and file an amended complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court correctly concluded that the plaintiff failed to state a cause of action to recover damages for employment discrimination on the basis of disability pursuant to Executive Law § 296, and properly granted the respondents' motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them. A complaint states a prima facie case of disability discrimination under the Executive Law if the individual suffers from a disability and the disability engendered the behavior for which he or she was discriminated against in the terms, conditions, or privileges of his or her employment (see Matter of McEniry v Landi, 84 NY2d 554, 558; McKenzie v Meridian Capital Group, LLC, 35 AD3d 676, 677; Thide v New York State Dept. of Transp., 27 AD3d 452, 453). The term "disability" is limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job held (see Executive Law § 292[21]; McKenzie v Meridian Capital Group, LLC, 35 AD3d at 677; Umansky v Masterpiece Intl., 276 AD2d 691, 692). Here, the complaint alleged employment discrimination on the basis of disability in violation of Executive Law § 296. However, the plaintiff failed to set forth, in the complaint or her supporting affidavits, factual allegations sufficient to show that, upon the provision of reasonable accommodations, she could perform the essential functions of her job (see McKenzie v Meridian Capital Group, LLC, 35 AD3d at 677). Thus, the Supreme Court properly concluded that she failed to state a cause of action to recover damages for employment discrimination on the basis of disability pursuant to Executive Law § 296.

Further, contrary to the plaintiff's contention, the Supreme Court properly denied her cross motion for leave to serve and file an amended complaint. Although leave to amend a pleading is to be freely granted, leave should be denied where, as here, the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Shefa Unlimited, Inc. v Amsterdam & Lewinter, 49 AD3d 521).
MASTRO, J.P., FLORIO, DICKERSON and BELEN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Appointing authority’s decision to terminate an employee found guilty of misconduct may not be set aside if supported by substantial evidence

Appointing authority’s decision to terminate an employee found guilty of misconduct may not be set aside if supported by substantial evidence

Matter of Guerrero v Scoppetta, 2008 NY Slip Op 06375, Decided on July 22, 2008, Appellate Division, Second Department


Kliegerman & Joseph, LLP, New York, N.Y. (Ronald E.
Kliegerman of counsel), for petitioner.
Michael A. Cardozo, Corporation Counsel, New York, N.Y.
(Alan G. Krams and Susan B. Eisner
of counsel), for respondents.


DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of Nicholas Scoppetta, as Fire Commissioner of the City of New York, dated July 26, 2006, which adopted the recommendation of a hearing officer dated June 30, 2006, made after a hearing, finding the petitioner guilty of 26 charges of misconduct and terminating his employment as an emergency medical technician with the Fire Department of the City of New York.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The petitioner was found guilty of 26 charges of misconduct following a disciplinary hearing, including abandoning his post without authorization and consuming alcohol while on duty, and was terminated from his employment as an emergency medical technician with the Fire Department of the City of New York (hereinafter FDNY). Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence (see CPLR 7803[4]; Matter of Rooney v Deer Park Fire Dept, 36 AD3d 823). Substantial evidence is "less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; see Matter of Andrew Naclerio Assoc., Inc. v Pradhan, 45 AD3d 585, 587). Here, the FDNY records, the testimony of numerous witnesses and the petitioner, and a videotape of the incidents on which the determination was based, provided "such relevant proof as a reasonable mind may accept as adequate" (Matter of Genovese Drug Stores, Inc. v Harper, 49 AD3d 735) to support the conclusion that the petitioner engaged in misconduct as found by the Fire Commissioner. Accordingly, as the determination was supported by substantial evidence, it may not be set aside (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Loscuito v Scoppetta, 50 AD3d 905; Matter of Egan v Von Essen, 260 AD2d 479).
RITTER, J.P., MILLER, DILLON and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Court holds CSL Section 159-b requires employees to be paid for absences for cancer-screening examinations without charge to leave accruals

Court holds CSL Section 159-b requires employees to be paid for absences for cancer-screening examinations without charge to leave accruals
Cruz et al v Wappingers CSD, Supreme Court, Dutchess Co., Judge James V. Brands, Index No : 21 97/08

Petitioners complain that they were denied excused leave of absence with pay and without
charge against leave accrual to undertake annual breast cancer screening. All three petitioners were employees ofthe Wappingers Central School District, and Dutchess County residents, at all relevant times. They rely upon Civil Service Law Section 159-b which provides, in relevant part, that every employee of any school district shall be entitled to absent herself and shall be deemed to have a leave of absence from her duties for a sufficient period of time, not to exceed four hours, on an annual basis, to undertake screening for breast cancer. It further provides that the entire period of the leave of absence shall be excused leave and shall not be charged against any other leave to which such employee is otherwise entitled.
Petitioner Cruz used two hours on November 30,2007 for breast cancer screening during
which time she was away from her employment. Petitioner Ohliger was granted a leave on or about January 1 1,2008 for breast cancer screening during which time she was away from her employment for one and one-half hours. Petitioner Stapleton was granted leave on or about January 1 1,2008 for breast cancer screening and was away from her employment for one hour. All three employees allege that they were told that the time either had to be charged to sick leave, or that they would not be paid for the time they were absent for the breast cancer screening. All three used their sick time. All three now claim they have been damaged by the respondent by the loss of the two hours, one and one-half hours, and one hour of sick leave accruals, respectively. It is argued by the petitioners and their attorney, that the intent of the legislature in affording this four hour annual leave, was to permit same without charge against any other leave to which such employee is entitled, and without diminution in pay. Counsel argues, logically, that if the law were meant to provide unpaid leave, there would be no need for the legislature to have stated that there could be no charge to any other accrued leave to which the employee is entitled. Counsel asks the court to consider the general spirit and purpose
of Civil Service Law Section 159-b. Counsel points to the Assembly Memorandum in support
(annexed as Exhibit H to the affirmation by Steven A. Crain, Esq. in support of the petition) in which the bill's sponsor, Assemblymen Brodsky, urges the governor's approval of the legislation in that it provides for incentive for early detection. Counsel argues that it is clear that the incentive is to provide time for screening without penalty, either penalty of pay or accrued sick time or annual leave.
Counsel also points out that the four hour leave benefit has been applicable to state employees since 2002 and that the State of New York provides the leave with pay. In support of the motion to dismiss, respondents' counsel argues that the statute unambiguously provides for unpaid administrative leave as there is no mention of the word "paid".

Respondents' counsel annexes as Appendix A to the moving papers is a statement issued by the New York State Conference of Mayors and Municipal Officials dated August 8,2007. The section on page 2 of the appendix entitled "Cancer Screening Leave" includes this language: "Notwithstanding that the leave is unpaid, and although an employer could not unilaterally charge actual leave, a request from an employee for paid leave could be honored". First, this is not binding. It is an interpretation by one group or individual of the statute. Respondents offer no authority for the conclusion that the granting of four hours leave was to be unpaid leave. What would be the purpose of the statute?

On the basis of the foregoing, it is hereby

ORDERED that respondents' motion to dismiss is denied. It is further
ORDERED that the petition is granted based upon the undisputed facts before this court, and
this court's interpretation of the clear and unambiguous language and the clear intent of the
legislature in enacting Civil Service Law Section 159-b to provide employees with a leave of absence of up to four hours per year for cancer screening. It is further
ORDERED that respondents shall, within ninety (90) days hereof, restore to petitioner
Barbara Cruz two hours sick leave; and restore to petitioner Ruth Ohliger one and one-half hours
sick leave; and restore to petitioner Karen Stapleton one hour sick leave.
The foregoing constitutes the decision, order and judgment of this court.
Dated: July 14, 2008
Poughkeepsie, New York
Nancy E. Hoffman, General Counsel
Steven A. Crain, of counsel
Civil Service Employees Association, hc.
Box 7125, Capitol Station
143 Washington Avenue
Albany NY 12224
Donoghue, Thomas, Auslander & Drohan, LLP
Deborah Lewis, Esq.
2517 Route 52
Hopewell Junction NY 12533
Pursuant to CPLR Section 55 13, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.

Payments in contemplation of retirement excluded in determining an individual’s final average salary for purposes of retirement

Payments in contemplation of retirement excluded in determining an individual’s final average salary for purposes of retirement
Matter of Franks v DiNapoli, 2008 NY Slip Op 06333, Decided on July 17, 2008, Appellate Division, Third Department

Law Offices of John K. Grant, P.C., Newburgh (John
K. Grant of counsel), for petitioner.
Andrew M. Cuomo, Attorney General, Albany (Victor
Paladino of counsel), for respondent.

MEMORANDUM AND JUDGMENT

Kane, J.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner's request for recalculation of his final average salary.

Petitioner was employed by the Town of Stony Point Police Department starting in 1974, and served as police chief from 1996 until his retirement in 2002. Pursuant to his first four-year contract as police chief, petitioner received executive longevity increments which gradually increased from a one-half day of pay per two-week pay period in 1996 to two days of pay per pay period in 2000. Petitioner drafted and negotiated his second contract as chief, which was effective from July 2000 to July 2002. That contract included executive longevity payments of 5½ days of pay per pay period for the first year and eight days of pay per pay period during the second year. The longevity payment provision contained a paragraph specifying that if petitioner elected to continue his employment as chief beyond the end of the contract, his executive longevity increments would revert back to two days of pay per pay period on August 1, 2002. Petitioner served out the term of his contract and retired effective August 1, 2002.

The State and Local Police and Fire Retirement System notified petitioner that it had calculated his retirement benefits based on a final average annual salary of $166,463.40. That amount included only two of his eight days per pay period of executive longevity payments; inclusion of amounts for the remaining six days would have increased the annual salary by $70,650.78. A Hearing Officer upheld the initial determination and respondent affirmed, prompting petitioner to commence this proceeding challenging the calculation of his retirement benefits. We affirm.

Respondent is vested with exclusive authority concerning applications for retirement benefits, requiring confirmation of his determinations if they are supported by substantial evidence (see Matter of Davies v New York State & Local Police & Fireman Retirement Sys., 259 AD2d 912, 913 [1999], lv denied 93 NY2d 810 [1999]; Matter of Tooley v McCall, 252 AD2d 794, 795 [1998]). Pursuant to the Retirement and Social Security Law, the salary base used to compute retirement benefits "shall not include any form of termination pay or compensation paid in anticipation of retirement" (Matter of Green v Regan, 103 AD2d 878, 878 [1984]; see Retirement and Social Security Law § 302 [9] [d]; § 431 [2], [3]). Regardless of the labels attached to compensation by the parties, the substance of the transaction and payments controls (see Matter of Davies v New York State & Local Police & Fireman Retirement Sys., 259 AD2d at 914; Matter of Green v Regan, 103 AD2d at 878-879).

Here, respondent's determination is supported by substantial evidence. Petitioner testified that he informed the Town Board prior to approval of his second contract that he intended to retire at the end of its term. He had accumulated more than sufficient yearly credits to qualify for retirement even prior to negotiation of that contract, and the contract stated that longevity payments were included in recognition of petitioner's continued service to the Town (see Matter of Tooley v McCall, 252 AD2d at 795). The contract dramatically increased the longevity payments compared to petitioner's prior years as chief, in such a way as to avoid limitations of benefits under another section of the statute (see Retirement and Social Security Law § 431 [4]), and provided that these increased payments would revert to the amount in the prior contract if petitioner did not retire (see Matter of Green v Regan, 103 AD2d at 879). Although petitioner testified that the large increase in longevity payments was negotiated in exchange for a waiver of overtime rights, the contract does not mention such an exchange, and petitioner's testimony created a credibility issue which respondent was free to resolve (see Matter of Tooley v McCall, 252 AD2d at 795). Under the circumstances, substantial evidence supports respondent's determination that the executive longevity increments constituted compensation in anticipation of retirement, which is properly excluded when calculating an employee's salary for the purpose of retirement benefits.

Spain, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

Deeming an individual’s absence without permission a resignation from, or abandonment of, the position

Deeming an individual’s absence without permission a resignation from, or abandonment of, the position

Matter of New York State Off. of Mental Health v New York State Div. of Human Rights, 2008 NY Slip Op 06329, Decided on July 17, 2008, Appellate Division, Third Department

Alan H. Sunukjian, New York State Office of Mental
Health, Albany, for petitioner.
Rawlins & Gibbs, L.L.P., New York City (Earl A.
Rawlins of counsel), for Alphonso Purse Jr., respondent.

MEMORANDUM AND JUDGMENT


Spain, J.P.

Proceedings pursuant to Executive Law § 298 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent State Division of Human Rights which, among other things, found petitioner guilty of an unlawful discriminatory practice based on disability.

Respondent Alphonso Purse Jr. began working as a safety officer for petitioner in 1978 and, during the period relevant to the instant proceeding, was assigned to the Manhattan Psychiatric Center. In October 1991, with the assistance of petitioner's Employee Assistance Program, Purse entered an inpatient rehabilitation program for alcohol abuse. Upon his release on or about November 3, 1991, Purse did not report back to work, but made several telephone calls to his supervisor, informing him that he would not be returning to work until November 18, 1991 for various reasons, including an injury to his leg. On November 21, 1991, petitioner's personnel office sent Purse a letter stating that, pursuant to the collective bargaining agreement (hereinafter CBA) between petitioner and Purse's union, he was considered to be absent from duty without authorization and he would be terminated on December 2, 1991 unless he provided [*2]a satisfactory explanation for his absence since his release from the program. The letter acknowledged that Purse had been in contact by telephone, but further stated that he had failed to report to the personnel office as instructed and to provide medical documentation for his absence. Although it appears that Purse did not receive the letter, in early December 1991, he spoke with Gail Babb, petitioner's senior personnel administrator, who relayed the letter's contents. In response, Purse sent petitioner's personnel office a certified letter dated December 15, 1991, which included a note dated November 12, 1991 from the Queens-Long Island Medical Group, P.C. that diagnosed Purse as having osteoarthritis in his right knee and prescribed rest until November 18, 1991. Also included were two notes from physician Eshagh Wiseman, one dated November 26, 1991 and another dated December 5, 1991, recommending that Purse be excused from work until "further notice." Petitioner removed Purse from its payroll on or about December 2, 1991 and, in March 1992 despite his communications terminated him.

In December 1992, Purse filed a verified complaint with respondent State Division of Human Rights (hereinafter SDHR) charging petitioner with an unlawful discriminatory practice based on his status as a recovering alcoholic. After investigation, SDHR determined that it had jurisdiction and that probable cause existed to believe that petitioner had engaged in the unlawful discriminatory practice complained of and recommended the matter for a public hearing. After various hearings before an Administrative Law Judge (hereinafter ALJ) between May 2002 and April 2004, the ALJ determined, as relevant here, that petitioner had engaged in a discriminatory practice and awarded Purse $5,000 for emotional distress. However, the ALJ further found that Purse was not entitled to back pay because he began to receive workers' compensation payments in close proximity to his separation from employment. Thereafter, SDHR upheld the ALJ's determination in most respects but reversed on the issue of back pay and awarded Purse an additional $385,750. Petitioner thereafter commenced this proceeding, which was subsequently transferred to this Court, seeking to annul SDHR's determination, and SDHR cross-petitioned for enforcement of its order.

This Court accords considerable deference to the determinations of SDHR due to its expertise in evaluating discrimination claims, and we will uphold such if supported by substantial evidence (see Matter of New York State Energy Research & Dev. Auth. v New York State Div. of Human Rights, 50 AD3d 1361, 1362 [2008]; Matter of R & B Autobody & Radiator, Inc. v New York State Div. of Human Rights, 31 AD3d 989, 990 [2006]). Moreover, "[a] determination may not be set aside 'merely because the opposite decision would have been reasonable and also sustainable'" (Matter of Matteo v New York State Div. of Human Rights, 306 AD2d 484, 485 [2003], quoting Matter of Mize v State Div. of Human Rights, 33 NY2d 53, 56 [1973]; see Matter of Bemis v New York State Div. of Human Rights, 26 AD3d 609, 611 [2006]). As such, we uphold SDHR's determination that petitioner engaged in an unlawful discriminatory practice.

After Purse satisfied his burden of setting forth a prima facie case of discrimination, petitioner offered Purse's violation of the CBA as a legitimate nondiscriminatory reason for his termination. The CBA states, in relevant part, that "[a]ny employee absent from work without authorization for ten consecutive workdays shall be deemed to have resigned from his [or her] position if he [or she] has not provided a satisfactory explanation for such absence on or before the eleventh workday following the commencement of such unauthorized absence." Here, the record demonstrates that, after failing to report to work on November 4, 1991, Purse contacted petitioner by telephone on November 7, 1991 putting petitioner on notice of his medically excused absence and, thereafter, followed with telephone calls on November 13, 1991 and [*3]November 18, 1991 the last of which he indicated that Purse would be absent for an indefinite period of time. After petitioner voluntarily placed Purse in a holding status until he furnished the proper documentation, Purse submitted the medical reports substantiating his absence in his letter dated December 15, 1991. Nonetheless, petitioner terminated Purse in March 1992. Consequently, on the record before us, we find that substantial evidence was present to support SDHR's determination that petitioner's proffered reason for terminating Purse was a pretext, that petitioner engaged in an unlawful discriminatory practice and that Purse was entitled to an award of $5,000 for emotional distress.

We disagree, however, with SDHR's determination that Purse was entitled to an award of back pay. The purpose of back pay is to make a person whole and redress the economic injury that has resulted from unlawful employment discrimination (see Matter of Freudenthal v County of Nassau, 99 NY2d 285, 291 [2003]; see also Saulpaugh v Monroe Community Hosp., 4 F3d 134, 145 [2nd Cir 1993], cert denied 510 US 1164 [1994]). Thus, where lossesin salary are attributable to disability and not the result of discrimination, an award of back pay should not be made (see Matter of Bemis v New York State Div. of Human Rights, 26 AD3d at 612-613; see also Rivera v NIBCO, Inc., 384 F3d 822, 832-833 [9th Cir 2004], cert denied 544 US 905 [2005]; Saulpaugh v Monroe Community Hosp., 4 F3d at 145). Here, the record demonstrates that Purse was removed from petitioner's payroll on December 2, 1991 and, as the result of a retroactive award, began receiving disability benefits on that same day. Thus, we find that SDHR erred in making the determination that Purse was entitled to a back pay award.

Lahtinen, Kane, Malone Jr. and Stein, JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as awarded back pay to respondent Alphonso Purse Jr., and, as so modified, confirmed.

Deputy sheriff found guilty of, among other things, improper use of a firearm, terminated

Deputy sheriff found guilty of, among other things, improper use of a firearm, terminated

Matter of Clarke v Cleveland, 2008 NY Slip Op 06332, Decided on July 17, 2008, Appellate Division, Third Department

503699

Robert M. Cohen, Ballston Lake, for petitioner.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls
(Eileen M. Haynes of counsel), for respondent.

MEMORANDUM AND JUDGMENT


Malone Jr., J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Warren County) to review a determination of respondent which terminated petitioner's employment as a deputy sheriff.

Petitioner had joined other officers in the pursuit of a vehicle that was speeding through the Village of Lake George, Warren County, at a rate of approximately 100 miles per hour when the brakes on his police vehicle failed, causing the vehicle to strike a stone retaining wall. As the pursuit continued up to the top of a hilly dead-end road, petitioner realized that his vehicle was damaged and was unable to ascend the hill so he parked his vehicle at the bottom of the road, blocking the right lane. He attempted to retrieve a set of "stop sticks" from the trunk, but was unable to do so from inside the vehicle. Petitioner then exited his vehicle and realized that the speeding vehicle was descending the hill in his direction. Petitioner then drew his firearm and began to shoot at the vehicle's tires in order to stop it. The vehicle drove past petitioner, but then suddenly applied its brakes and drove backwards towards petitioner. Petitioner then reloaded his firearm and pointed it at the driver of the vehicle, who abruptly drove down an embankment and fled the scene.

A few days later, at respondent's request, petitioner provided a written statement detailing the facts and circumstances surrounding the pursuit. Consequently, petitioner was suspended and given notice of the disciplinary proceeding that respondent had initiated against him. Petitioner was charged with eight disciplinary violations and, following a hearing held pursuant to Civil Service Law § 75, respondent withdrew three of the charges. Ultimately, the Hearing Officer found petitioner guilty of the five remaining charges, which included, among other things, the improper use of a firearm and the failure to immediately report an accident involving an agency vehicle. In accordance with the recommendation of the Hearing Officer, respondent terminated petitioner's employment. Petitioner commenced this proceeding, seeking to annul respondent's termination of his employment in its entirety or, alternatively, the imposition of a lesser penalty. Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804 (g).

Petitioner initially contends that the findings of guilt were not supported by substantial evidence. We disagree. Our review is limited to whether the outcome of the administrative proceeding "is supported by the type of evidence that a reasonable mind might accept as adequate to support the conclusion reached" (Matter of Doolittle v McMahon, 245 AD2d 736, 738 [1997]; see Matter of Goldsmith v DeBuono, 245 AD2d 627, 628 [1997]). In conducting this review, this Court may not substitute its own judgment for that of the agency, even when evidence exists that could support a different result (see Matter of Calhoun v Kelly, 13 AD3d 302, 303 [2004]; Matter of Ernst v Saratoga County, 251 AD2d 866, 867 [1998]).

Here, petitioner testified that the vehicle was accelerating towards him as it descended the hill, but, as petitioner drew his weapon and took aim at the driver's head, the vehicle suddenly swerved away from petitioner. The evidence shows that, although the vehicle had passed petitioner and no longer posed an imminent threat to his safety, petitioner attempted to stop the vehicle by firing approximately 14 rounds at its tires. Thereafter, the vehicle drove in reverse towards petitioner, who reloaded his firearm and aimed it at the driver's head until the vehicle proceeded down an embankment on the side of the road. Although petitioner claimed that his actions were justified and in full compliance with the departmental regulation that prohibits the discharge of a firearm at a moving vehicle unless the occupant of the vehicle was asserting deadly physical force, the Hearing Officer found that, under these circumstances, petitioner exercised poor judgment and demonstrated "a disregard for the life and safety of others." The Hearing Officer also found that petitioner failed to immediately report the vehicular accident that occurred during the chase and negligently continued to operate his damaged vehicle. Petitioner testified that, although he was aware that his vehicle had been damaged and that department regulations required him to report the accident and discontinue operating the vehicle, he felt that it was more important to continue pursuing the speeding vehicle. Based on the foregoing, we find that substantial evidence supports the Hearing Officer's findings.

Finally, petitioner claims that the termination of his employment was excessive. Where, as here, the penalty rendered "involves a matter of internal discipline within a law enforcement organization, it is entitled to deference" (Matter of Wilburn v McMahon, 296 AD2d 805, 807 [2002]; see Matter of McKinney v Bennett, 31 AD3d 860, 862 [2006]). Given the circumstances presented here and considering the seriousness of petitioner's misconduct, we do not find that the penalty of dismissal was so disproportionate to the offenses as to shock our sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]; Matter of Eck v County of Delaware, 36 AD3d 1180, 1183 [2007]; Matter of Correll v Bucci, 19 AD3d 919, 921 [2005]).

Spain, J.P., Lahtinen, Kane and Stein, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

Award of $850,000 by the NYS Division of Human Rights held excessive and reduced to $200,000

Award of $850,000 by the NYS Division of Human Rights held excessive and reduced to $200,000
Matter of New York State Dept. of Correctional Servs. v New York State Div. of Human Rights, 2008 NY Slip Op 06246, Decided on July 10, 2008, Appellate Division, Third Department

Anthony J. Annucci, Department of Correctional
Services, Albany (Leonard A. Mancini of counsel), for petitioner.
Caroline J. Downey, New York State Division of
Human Rights, New York City (Michael K. Swirsky of counsel), for
respondent.

MEMORANDUM AND JUDGMENT


Rose, J.

Proceeding pursuant to Executive Law § 298 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of an unlawful discriminatory practice based on sexual orientation and gender.

In March 2003, Alicia S. Humig, the only female correction officer on her cell block at petitioner's Wende Correctional Facility, filed a complaint with respondent alleging that petitioner subjected her to a hostile work environment and discrimination based upon her gender and sexual orientation as the result of correction officer Jay Wright's obscene language and offensive conduct. Humig charged that petitioner had ignored her complaints about Wright's conduct, had taken no steps to discipline him and had retaliated against her. Following a hearing and recommendations by an Administrative Law Judge, respondent sustained the complaint and awarded compensatory damages in the amount of $850,000. Petitioner seeks to nullify this determination.

We reject petitioner's contention that respondent lacked jurisdiction to entertain Humig's complaint. Although Executive Law § 296 did not prohibit sexual discrimination based on sexual orientation until January 16, 2003 (see L 2002, ch 2), and the amendment applies prospectively only (see Wilder v Newman, 167 Fed Appx 828 [2006]; Logan v Salvation Army, 10 Misc 3d 756, 759-760 [2005]), the discriminatory conduct proven at the hearing was based upon Humig's gender as well as her sexual orientation, and it continued until July 2003, well after the amendment's effective date (see generally Matter of Binghamton GHS Empls. Fed. Credit Union v State Div. of Human Rights, 77 NY2d 12, 17 [1990]; Matter of Board of Higher Educ. of City of N.Y. v Carter, 14 NY2d 138, 145 [1964]).

In reviewing respondent's findings that petitioner subjected Humig to a hostile work environment due to her gender and her sexual orientation during the time period, we are limited to determining whether those findings are supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181 [1978]), and we will "not weigh the evidence or reject [respondent's] determination 'where the evidence is conflicting and room for choice exists'" (Matter of Manhattan & Bronx Surface Tr. Operating Auth. v New York State Exec. Dept., 220 AD2d 668, 668 [1995], quoting City of New York v State Div. of Human Rights [Granelle], 70 NY2d 100, 106 [1987]; see Executive Law § 298). A hostile work environment is one in which "'the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment'" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310 [2004], quoting Harris v Forklift Sys., Inc., 510 US 17, 21 [1993]; see Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 28 AD3d 906, 906-907 [2006]).

Here, respondent credited the testimony of Humig and other officers at her facility that Wright, who, while holding the same rank as Humig, was effectively her superior in running the cell block where she worked and had referred to Humig in obscene and sexually demeaning terms in the presence of other correction officers and inmates on numerous occasions over a period of about one year. The evidence also established that Wright frequently encouraged her to "bid out" to obtain a position elsewhere, was responsible for offensive writings and sexually explicit graffiti prominently displayed in her workplace, and filed a baseless complaint against her. Wright's comments were shown to be persistent and relentless, and despite Humig's numerous written and verbal complaints to her superiors, the discriminatory behavior was not curtailed until Wright himself left for another position within the facility. The proof established that petitioner, through its supervisory personnel, failed to properly process Humig's complaints while promptly processing Wright's complaint against her despite their acknowledgment that they had known his complaint was "bogus." Petitioner also subjected Humig to an investigation by the Inspector General and her locker to a search, resulting in confiscation of her property. The record further shows that Humig's superiors were aware of the harassment and her complaints, but did nothing about them and, thereby, condoned Wright's conduct (see Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, 687 [1985]; Matter of Grand Union Co. v Mercado, 263 AD2d 923, 924-925 [1999]). Given the nature of the discriminatory conduct, as well as the testimony of Humig and her witnesses, respondent's finding that a hostile work environment existed and was ignored by her superiors in violation of departmental policies is amply supported by the record (see Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 28 AD3d at 907; Matter of Grand Union Co. v Mercado, 263 AD2d at 925).

We also agree with respondent's finding of retaliation. To establish a prima facie case of retaliation, Humig was required to show that (1) she was engaged in a protected activity, (2) petitioner was aware of that activity, (3) she suffered an adverse employment action and (4) there was a causal connection between her protected activity and the adverse employment action (see Forrest v Jewish Guild for the Blind, 3 NY3d at 312-313; Matter of Board of Educ. of New Paltz Cent. School Dist. v Donaldson, 41 AD3d 1138, 1140 [2007], lv denied 10 NY3d 706 [2008]). This burden was satisfied through evidence that Humig had made numerous oral and written complaints of which petitioner was aware and that after these complaints were made, Humig's superiors singled out her locker for search, disposed of her personal property from her locker and from a common area in her workplace, and initiated a formal investigation against her based upon a complaint that they now claim they knew to be baseless, while refusing to properly process her own complaints (see Dortz v City of New York, 904 F Supp 127, 156 [SD NY 1995). The record also confirms that petitioner failed to present "a legitimate, independent and nondiscriminatory reason" for its conduct (Pace v Ogden Servs. Corp., 257 AD2d 101, 105 [1999]; see Matter of Board of Educ. of New Paltz Cent. School Dist. v Donaldson, 41 AD3d at 1141-1142). Accordingly, we find no basis to disturb respondent's finding that petitioner unlawfully retaliated against Humig.

We cannot agree, however, that the award of $850,000 for Humig's emotional distress is reasonably related to the wrongdoing, supported by the record and comparable to other awards for similar injuries (see Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 219 [1991]). It is well settled that "an award of compensatory damages must be based on pecuniary loss and emotional injuries actually suffered" as a result of discrimination, and "[c]are must be taken to insure that the award is . . . not punitive" (Matter of New York State Dept. of Correctional Servs. v New York State Div. of Human Rights, 225 AD2d 856, 858, 859 [1996]; see Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 241 AD2d 811, 812 [1997], lv denied 92 NY2d 807 [1998]; Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 215 AD2d 908, 910 [1995]).

Humig and her witnesses testified that, as a result of the discriminatory actions by Wright, she suffered from increased stress, sleeping and eating difficulties, nosebleeds, and that she was physically, mentally and emotionally upset and needed counseling for what her counselor diagnosed as "adjustment disorder with depressive features." Notably, however, Humig attended only four counseling sessions, and she does not claim that she took any leave or was prescribed any medication due to the resulting distress. She testified that Wright's actions caused her to fear for her life and she believed that other correction officers might not come to her aid if a dangerous situation developed. While respondent cites cases where awards in the amount of $400,000 or more have been sustained (see Matter of Kondracke v Blue, 277 AD2d 953 [2000] [$400,000]; Matter of Town of Hempstead v State Div. of Human Rights, 233 AD2d 451 [1996], appeal dismissed 89 NY2d 1029 [1997], lv denied 90 NY2d 807 [1997] [$200,000-$500,000]; Matter of New York City Tr. Auth. v State Div. of Human Rights, 181 AD2d 891 [1992], lv denied 80 NY2d 762 [1992] [$450,000]), we find that those cases involved far more pervasive discrimination and injuries that were far more severe than in the present case. Accordingly, after reviewing awards in cases of comparable emotional distress caused by discrimination and sexual harassment, we find that the award here of $850,000 is excessive and should be reduced to $200,000 (see e.g. Matter of Anagnostakos v New York State Div. of Human Rights, 46 AD3d 992 [2007]; Matter of Board of Educ. of New Paltz Cent. School Dist. v Donaldson, supra; Matter of Bell v New York State Div. of Human Rights, 36 AD3d 1129 [2007]; Matter of R & B Autobody & Radiator, Inc. v New York State Div. of Human Rights, 31 AD3d 989 [2006]; Matter of New York State Dept. of Correctional Servs. v State Div. of Human Right, supra).

We have considered petitioner's remaining arguments and find them to be without merit.

Cardona, P.J., Peters, Carpinello and Malone Jr., JJ., concur.

ADJUDGED that the determination is modified, without costs, by reducing the amount awarded from $850,000 to $200,000, and, as so modified, confirmed.