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Labor & Employment Law

New York Public Personnel Law

Summaries of and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State.

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Last Entry: November 05, 2020 at 10:02:02

Dismissal from a position because the individual does not possess a valid required license or certification is not a disciplinary termination

Posted on March 26, 2010
Dismissal from a position because the individual does not possess a valid required license or certification is not a disciplinary terminationMatter of New York State Off. of Children & Family Servs. v Lanterman, 2010 NY Slip Op 02432, Decided on March 25, 2010, Court of Appeals[Decided with Matter of New York State Office of Alcoholism and Substance Abuse Services v Victor Ortiz]These two cases involve State employees who were dismissed from their respective positions because they lacked the necessary licenses or credentials...

Preparing a defense to disciplinary charges

Posted on March 26, 2010
Preparing a defense to disciplinary chargesGuastafeste v NYC Dept. of Sanitation, App. Div., 1st Dept., 282 A.D.2d 398When an employee is served with disciplinary charges, he or she is entitled to be given information concerning such charges sufficient to permit his or her adequately preparing his or her defense [Pachucki v Walters, 56 AD2d 677]...

Police chief held to have qualified immunity with respect to First Amendment violation allegations

Posted on March 26, 2010
Police chief held to have qualified immunity with respect to First Amendment violation allegationsGubitosi v. Kapica, CA2, 154 F.3d 30After a local newspaper reported that Police Officer Lori Gubitosi of the Town of Greenburgh was a lesbian, Gubitosi became reluctant to perform strip searches on female prisoners...

Union newsletter articles alleged to be libelous

Posted on March 26, 2010
Union newsletter articles alleged to be libelousSantiago v United Federation. of Teachers, Local 2, 39 A.D.3d 284Manuel Santiago, an assistant principal, sued a teacher who served as a union representative alleging that two articles authored by the teacher that were published in a teacher union?s newsletter were libelous...

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Due process in administrative hearings requirements

Posted on March 26, 2010
Due process in administrative hearings requirementsGoohya v Walsh-Tozer, App. Div., 2nd Dept., 292 A.D.2d 384The Goohya decision sets out a number of pitfalls that an administrative hearing officer must avoid if his or her determination and recommendation is to survive judicial review...

Reviewing the disqualification of an applicant pursuant to Civil Service Law �50.4

Posted on March 26, 2010
Reviewing the disqualification of an applicant pursuant to Civil Service Law �50.4Hirst v Agrelo, Supreme Court, New York County Part 50E, Index #403004/06, Decided March 16, 2007, Judge William A. Wetzel [Not published in the Official Reports]Martha K...

Demanding a letter of apology claimed

Posted on March 26, 2010
Demanding a letter of apology claimed to impinge on the individual?s constitutionally protected speechWildman v Marshalltown School District, CA 8, 249 F.3d 768The general rule is that a public employee's right to free speech under the First Amendment on the job is protected with respect to speech involving matters the public interest...

Appeal of Deborah Cooper from action of the Board of Education of the Hempstead Union Free School District

Posted on March 26, 2010
Appeal of Deborah Cooper from action of the Board of Education of the Hempstead Union Free School DistrictCommissioner of Education Decision No. 15,708The Commissioner dismissed Deborah Cooper?s appeal claiming that the school district should have appointed her to a Coordinator of Student Support Services position while she was on a preferred eligible list...

Penalty imposed remanded to appointing authority for reconsideration after court vacates findings of guilt with respect to 2 of 5 disciplinary charges

Posted on March 25, 2010
Penalty imposed remanded to appointing authority for reconsideration after court vacates findings of guilt with respect to 2 of 5 disciplinary chargesMatter of Berger v Board of Fire Commissioners of the Jericho Fire District., 2010 NY Slip Op 02138, Decided on March 16, 2010, Appellate Division, Second DepartmentThe Board of Fire Commissioners of the Jericho Fire District a hearing officer finding Michael Berger guilty of five charges of misconduct and, or, incompetence and terminated his membership as a Volunteer Firefighter Captain with the Jericho Fire District...

Writ of prohibition not available to bar an executive action such as conducting an investigation

Posted on March 25, 2010
Writ of prohibition not available to bar an executive action such as conducting an investigationMatter of Doe v Cuomo, 2010 NY Slip Op 02143, Decided on March 16, 2010, Appellate Division, Second Department?John Doe? initiated a CPLR Article 78 action seeking a writ of prohibition* to bar NYS Attorney General Andrew M...

Employee terminated after being found guilty of misconduct following his conviction of crimes deemed to reflect unfavorably upon employee?s character

Posted on March 25, 2010
Employee terminated after being found guilty of misconduct following his conviction of crimes deemed to reflect unfavorably upon employee?s characterMatter of Taylor v City of Glen Cove, 2010 NY Slip Op 02157, Decided on March 16, 2010, Appellate Division, Second DepartmentArnold Taylor, a Supervisor of Sanitation in the Department of Public Works of the City of Glen Cove, pleaded guilty to the crimes of criminal sale of a controlled substance in the fifth degree, a class D felony, and criminal possession of a weapon in the fourth degree, a class A misdemeanor...

Employer seeks to terminate employee

Posted on March 25, 2010
Employer seeks to terminate employee following her return to work after six month absence without explanationNYC Dept. of Sanitation v Moore, OATH Index 1035/10The New York City Department of Sanitation sought to terminate Sabrina Moore, a clerical associate, who had been absent without leave for more than six months...

Termination of employment recommended for employee found guilty of harassment of fellow employee based on co-worker?s religion

Posted on March 25, 2010
Termination of employment recommended for employee found guilty of harassment of fellow employee based on co-worker?s religionDep't of Parks & Recreation v. Mullusky, OATH Index No. 2041/09Administrative Law Judge John Spooner found that park worker Chris Mullusky had harassed and mistreated a Jewish co-worker because of the co-worker?s religion in violation of the City's Equal Employment Opportunity policy...

Credibility determinations in a disciplinary hearing

Posted on March 25, 2010
Credibility determinations in a disciplinary hearingSwakeen v New York City Health & Hospitals Corp., 39 A.D.3d 287Bensam Swakeen, an operating room technician employed by New York City?s Health and Hospitals Corporation [HHC], was found guilty of misconduct and suspended for 30 days without pay...

Determining if a grievance was timely filed

Posted on March 25, 2010
Determining if a grievance was timely filedSocial Services Employees Union, Local 371 v City of New York, 47 AD3d 498The Appellate Division, First Department, affirmed Supreme Court?s confirmation of an arbitrator?s award dismissing the Union?s grievance on the grounds that it was untimely...

Disciplinary hearing conducted in absentia

Posted on March 25, 2010
Disciplinary hearing conducted in absentiaMatter of Burkhalter, Commissioner?s Decision 13979In most disciplinary cases a hearing will go forward even if one of the parties refuses to participate. More often than not it is the accused employee who declines to appear before the hearing officer...

Some elements to consider in an appeal to the Commissioner of Education

Posted on March 25, 2010
Some elements to consider in an appeal to the Commissioner of EducationIn the Matter of Dania Hall and the Board of Education of the North Bellmore Union Free School, Decision of the Commissioner of Education No. 15,543The Commissioner of Education dismissed Dania Hall?s appeal challenging the Board of Education?s decision to deny her tenure and terminate her employment...

Challenging the abolishment of a position in the public service

Posted on March 25, 2010
Challenging the abolishment of a position in the public serviceMatter of Civil Service Employees Association. Inc., Local 1000, AFSCME, AFL-CIO v Rockland County Bd. of Coop. Educ. Servs., 39 A.D.3d 641In this appeal, the Civil Service Employees Association...

Genesee County Legislature imposes the terms and conditions of the 2006-2008 collective bargaining agreement on negotiating unit for 2009

Posted on March 24, 2010
Genesee County Legislature imposes the terms and conditions of the 2006-2008 collective bargaining agreement on negotiating unit for 2009Source: Resolution 107 of the Genesee County Legislature [2010]The contract negotiations between Genesee County and the CSEA, Local 1000, Local Unit 819, Genesee County General Unit, resulted in an agreement by the respective Negotiating Teams...

Employer did not violate human rights law when it terminated an individual who was unable to qualify for a required license

Posted on March 24, 2010
Employer did not violate human rights law when it terminated an individual who was unable to qualify for a required licenseJoseph Kinneary v City Of New York, 08-1330-Cv (2nd Cir. 3-19-2010)Joseph Kinneary sued the City of New York contending that he was terminated* from his position as sludge boat captain with the New York City Department of Environmental Protection in violation of the Americans With Disabilities Act, New York State?s Human Rights Law and New York City?s Human Rights Law...

Termination following discipline hearing conducted in absentia upheld

Posted on March 24, 2010
Termination following discipline hearing conducted in absentia upheldChawki v New York City Department of Education, Manhattan High Schools, District 71, 39 AD3d 321The New York City Department of Education (DOE) served disciplinary charges and specifications on Houda Chawki, a tenured high school teacher...

Administrative decision disqualifying applicant for promotion examination because she retained examination material overturned

Posted on March 24, 2010
Administrative decision disqualifying applicant for promotion examination because she retained examination material overturnedMatter of City of New York v New York City Civil Service Commission and Esther Silver, 2006 NY Slip Op 30014(U), [Not selected for publication in the Official Reports]Esther Silver, a Sabbath observer, took a civil service examination for promotion to Associate Staff Analyst on Friday, June 8, 2001 instead of on its scheduled date, Saturday, June 9, 2001...

Providing Workers? Compensation benefits to firefighters for a work-related injury

Posted on March 24, 2010
Providing Workers? Compensation benefits to firefighters for a work-related injuryMatter of Wiley v City of Watertown Fire Dept., 39 A.D.3d 975Frederick Wiley, a paid firefighter, was injured in 1981 while working for the City of Watertown Fire Department...

An appeal to the Commissioner of Education must show a clear legal right to the relief sought

Posted on March 24, 2010
An appeal to the Commissioner of Education must show a clear legal right to the relief soughtAppeal of Edward Dyminski from action of the Board of Education of the City School District of the City of Rochester, Decisions of the Commissioner of Education No...

Unemployment Insurance claim rejected following resignation found not medically necessary

Posted on March 24, 2010
Unemployment Insurance claim rejected following resignation found not medically necessaryMatter of Cartarius-Macri v Commissioner of Labor, 39 A.D.3d 994Laura M. Cartarius-Macri was employed as a senior keyboard specialist at a school from September 1998 until September 2005...

Standard used by the court in evaluating an employee?s defamation claim coupled with a demand for a "name clearing hearing"

Posted on March 24, 2010
Standard used by the court in evaluating an employee?s defamation claim coupled with a demand for a "name clearing hearing"Matter of Casale v Metropolitan Transportation Authority, 47 AD3d 519Nicholas Casale was termination from his position as the Authority?s Deputy Director of Security with the Metropolitan He asked the court to order that the Authority give him a name-clearing hearing and that the Authority reinstate him to his former position...

The State Department of Education seeks Regents approval for an additional $2,000,000 for "Tenured Teacher Hearings"

Posted on March 23, 2010
The State Department of Education seeks Regents approval for an additional $2,000,000 for "Tenured Teacher Hearings"Source: Executive Summary: Amended 2010-2011 Regents Budget Priorities.On March 9, 2010, Deputy Commissioner of Education for Operations and Management Services Theresa E...

Protected activity under the Taylor Law

Posted on March 23, 2010
Protected activity under the Taylor LawMiller and NYC Board of Education, 35 PERB 3002Reeva Miller received unsatisfactory performance ratings over a number of school years, including the 1998-1999 school year. Following her receiving the 1998-1999 unsatisfactory rating, the New York City Board of Education initiated disciplinary action against Miller pursuant to Section 3020-a of the Education Law based on her unsatisfactory performance...

Educator terminated after being reported as having improperly attempting to raise her pupils' standardized test scores

Posted on March 23, 2010
Educator terminated after being reported as having improperly attempting to raise her pupils' standardized test scoresRivera v Community School District 9 [NYC], USDC SDNY, Justice Stein, 145 F. Supp. 2d 302Anna Rivera, a probationary teacher employed by New York City's Community School District 9, was terminated for allegedly improperly attempting to raise her pupils' standardized test scores...

Protected activity under Title VII

Posted on March 23, 2010
Protected activity under Title VIIMcMenemy v City of Rochester, CA2, 241 F.3d 279If an individual who works for Employer A investigates a human rights complaint alleged by an individual working for Employer B, is he or she engaged in a protected activity within the meaning of Title VII insofar as Employer A is concerned? This was a major issue in the McMenemy case...

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