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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.

Post Frequency: 10.2/day

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

Failure to provide ?progressive discipline? viewed as a mitigating factor in setting a disciplinary penalty

Posted on March 05, 2010
Failure to provide ?progressive discipline? viewed as a mitigating factor in setting a disciplinary penaltyNew York City Human Resources Administration v Williams, OATH #3072/09In a disciplinary hearing, OATH Administrative Law Judge Kevin Casey found that the Human Resources Administration proved several charges against David Williams, a captain in the agency?s police force...

Except under "exceptional circumstances," an employer cannot refuse to permit an individual to resign from his or her position

Posted on March 05, 2010
Except under "exceptional circumstances," an employer cannot refuse to permit an individual to resign from his or her positionMatter of Vinluan v Doyle, 60 AD3d 237Felix Vinluan, an attorney, represented a number of nurses at a Long Island nursing home, Avalon Gardens...

Employer's responsibility for the payment of health insurance premiums upon retirement

Posted on March 05, 2010
Employer's responsibility for the payment of health insurance premiums upon retirementGary T. Winnett, Et Al. V Caterpillar, Inc., USCA, Sixth Circuit, #07-6275, Decided January 27, 2009The plaintiffs in this action are retired Caterpillar employees. When Caterpillar commenced charging these retirees for a portion of their health insurance premiums, they sued contending that Caterpillar breached its promise to provide lifetime retiree medical benefits at no cost to the retiree as set out in a 1998 collective bargaining agreement...

Employee injured in the employer?s gym while practicing for a sports event not sponsored by the employer denied workers? compensation benefits

Posted on March 05, 2010
Employee injured in the employer?s gym while practicing for a sports event not sponsored by the employer denied workers? compensation benefitsMatter of Booth v New York State Dept. of Corrections, 58 AD3d 1027Troy Booth, a correction officer at Arthur Kill Correctional, was injured while practicing basketball off-duty in the Arthur Kill?s gym while practicing for the "Department of Correction Olympics," an annual event involving correction officers and staff from the various correctional facilities around the state...

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Due process requires good faith

Posted on March 05, 2010
Due process requires good faith effort to serve disciplinary charges on employeeMatter of Norgrove v Board of Educ. of City School Dist. of City of N.Y., 23 Misc 3d 684Lesleigh B. Norgrove was terminated from his position as a tenured mathematics teacher after he failed to seek a disciplinary hearing...

Collective bargaining agreements must set out in clear and unmistakable language any waiving of an employee's right to a judicial forum

Posted on March 05, 2010
Collective bargaining agreements must set out in clear and unmistakable language any waiving of an employee's right to a judicial forumAmbrosino v Village of Bronxville, 58 AD3d 649Joseph Ambrosino sued the Village of Bronxville for damages based on alleged unlawful discrimination in employment on the basis of disability and for ?breach of contract...

NYC?s Administrative Code requires court to apply ?more stringent requirements? in adjudicating civil rights law allegations

Posted on March 04, 2010
NYC?s Administrative Code requires court to apply ?more stringent requirements? in adjudicating civil rights law allegationsWilliams v New York City Hous. Auth., 61 AD3d 62State Supreme Court dismissed Gina Williams? complaint alleging a hostile work environment, disparate treatment on the basis of sex, and retaliation in violation of applicable provisions of the Executive Law and the New York City Administrative Code its entirety...

Agency?s initial decision sustaining an employee?s out-of-title work grievance overturned by the Governor?s Office Of Employee Relations

Posted on March 04, 2010
Agency?s initial decision sustaining an employee?s out-of-title work grievance overturned by the Governor?s Office Of Employee RelationsMatter of Cushing v Governor's Off. of Empl. Relations, 58 AD3d 1095The Governor's Office of Employee Relations denied Judy M...

BOCES not entitled to claim Eleventh Amendment immunity if sued in federal courts

Posted on March 04, 2010
BOCES not entitled to claim Eleventh Amendment immunity if sued in federal courtsCarrie Gorton v Bruce Gettel and Sullivan County BOCES, USCA, 2nd Circuit, Docket # 17-3190-cv, decided January 28, 2009Carrie Gorton filed a complaint in Federal District Court alleging that during her two years of employment as a counselor and recruiter at Sullivan County BOCES, she was harassed repeatedly by Bruce Gettel, a fellow teacher...

County Personnel Department refuses to certify the payroll following the appointment of an individual not among the three highest on the eligible list

Posted on March 04, 2010
County Personnel Department refuses to certify the payroll following the appointment of an individual not among the three highest on the eligible listMatter of Gramando v Putnam County Personnel Dept., 58 AD3d 842The Carmel Central School District appointed Joseph Gramando to the position of Director of School Facilities, Operations, and Transportation...

Union presses an appeal notwithstanding its concession that a final administrative determination rendered the appeal moot

Posted on March 04, 2010
Union presses an appeal notwithstanding its concession that a final administrative determination rendered the appeal mootIn re Civil Service Technical Guild, Local 375, AFSCME, v The City of New York, et al, 58 AD3d 581New York State Supreme Court Justice Carol R...

Disciplinary hearing officer?s findings the basis for collateral estoppel in a subsequent administrative hearing concerning the same issue

Posted on March 03, 2010
Disciplinary hearing officer?s findings the basis for collateral estoppel in a subsequent administrative hearing concerning the same issueMatter of Morales v Commissioner of Labor, 2010 NY Slip Op 01559, Decided on February 25, 2010, Appellate Division, Third DepartmentFelicita Morales, a community associate for the New York City Housing Authority, was charged with misconduct stemming from a confrontation with her supervisor and was found guilty of [1] yelling at her supervisor, [2] pulling a the telephone away from her superior and [3] failing to leave the supervisor's office when told to do so...

Hearing officer declines to recommend a disciplinary penalty after charged individual resigns from the position

Posted on March 03, 2010
Hearing officer declines to recommend a disciplinary penalty after charged individual resigns from the positionNew York City Fire Department v Terrance Hardy, OATH Index #1430/10The New York City Fire Department alleged that Terrance Hardy, an emergency medical technician (EMT), had sexually abused a patient...

Annulling four of forty-one specifications of alleged misconduct, court sustains finding the employee guilty of the surviving charges and the penalty

Posted on March 03, 2010
Annulling four of forty-one specifications of alleged misconduct, court sustains finding the employee guilty of the surviving charges and the penaltyMatter of Levi v Lauro, 58 AD3d 851Thomas Lauro, Commissioner of the Westchester County Department of Environmental Facilities, adopted the report and recommendation of a hearing officer finding Miriam Baht Levi guilty of 41 specifications of incompetence and/or misconduct, and suspended her from employment without pay for a period of 60 days...

Notice of claim must be timely to trigger a duty to defend and indemnify the party being sued

Posted on March 03, 2010
Notice of claim must be timely to trigger a duty to defend and indemnify the party being suedGutierrez v State of New York, 58 AD3d 805Typically lawsuits in which the issue is whether or not timely notice of a claim has been made involve individuals attempting to sue the State or a political subdivision of the State...

Employee protected by Title VII if he or she suffers retaliation by the employer after reporting workplace race or gender discrimination

Posted on March 03, 2010
Employee protected by Title VII if he or she suffers retaliation by the employer after reporting workplace race or gender discriminationCrawford v Metropolitan Government Of Nashville And Davidson County, Tennessee, US Supreme Court, No. 06?1595The genesis of this ruling was an internal investigation into rumors of sexual harassment of employees by the Metro School District Employee Relations Director...

Dismissed employee precluded from litigating her termination because of her failure to exhaust her administrative remedies

Posted on March 03, 2010
Dismissed employee precluded from litigating her termination because of her failure to exhaust her administrative remediesMatter of Yan Ping Xu v New York City Dept. of Health, 22 Misc 3d 1116(A)Yan Ping Xu, a New York City Research Scientist Level I, a position in the non-competitive class, was terminated from her position...

Consideration of hearsay evidence in a Section 75 disciplinary hearing permitted

Posted on March 03, 2010
Consideration of hearsay evidence in a Section 75 disciplinary hearing permittedMatter of Ebling v Town of Eden, 59 AD3d 978The Appellate Division confirmed the dismissal of Stephen Ebling from his position following a hearing pursuant to Civil Service Law � 75...

No private right of action against ?state actors? pursuant to 42 USC 1981, the Civil Rights Law

Posted on March 03, 2010
No private right of action against ?state actors? pursuant to 42 USC 1981, the Civil Rights LawMcGovern v Philadelphia, USCA Third Circuit, No. 08-1632, Decided January 28, 2009The McGovern decision holds that employees of a municipality may not sue the City of Philadelphia pursuant to 42 USC 1981 for alleged race discrimination...

Employee?s memorandum to her superior complaining about another worker?s conduct towards her may be protected by a qualified privilege

Posted on March 02, 2010
Employee?s memorandum to her superior complaining about another worker?s conduct towards her may be protected by a qualified privilegeSassaman v Brant, 2010 NY Slip Op 01634, decided on February 23, 2010, Appellate Division, Second DepartmentC. Thomas Sassaman sued Michele Brant to recover damages for defamation...

Holding two elective offices in the same county simultaneously barred absent adoption of appropriate action to permit such dual office-holding

Posted on March 02, 2010
Holding two elective offices in the same county simultaneously barred absent adoption of appropriate action to permit such dual office-holdingSpencer v Cristo, 2010 NY Slip Op 01603, decided on February 25, 2010, Appellate Division, Third DepartmentSupreme Court declared that Michael P...

No fundamental right to pension benefits contained in a collective bargaining agreement

Posted on March 02, 2010
No fundamental right to pension benefits contained in a collective bargaining agreementSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright � 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...

Appealing an administrative decision as provided in a CBA does not toll the Statute of Limitations for filing an Article 78 action

Posted on March 02, 2010
Appealing an administrative decision as provided in a CBA does not toll the Statute of Limitations for filing an Article 78 actionPak v New York City Dept. of Educ., 22 Misc 3d 1117(A)Kifan Pak, a probationary teacher, was told that he would be terminated from his position effective February 28, 2007...

Appointing authority directed to set a new disciplinary penalty after court vacates a finding of guilt on one of two specifications

Posted on March 02, 2010
Appointing authority directed to set a new disciplinary penalty after court vacates a finding of guilt on one of two specificationsMatter of Borrelli v Kelly, 59 AD3d 164New York City Police Commissioner filed disciplinary charges against New York City police officer Robert Borrelli...

Article 75 petition seeking to vacate a disciplinary arbitration award terminating a tenured teacher dismissed as untimely

Posted on March 02, 2010
Article 75 petition seeking to vacate a disciplinary arbitration award terminating a tenured teacher dismissed as untimelyMatter of Awaraka v Board of Educ. of City of New York, 59 AD3d 442Josephine Awaraka, a tenured teacher employed by the New York City Board of Education, was found guilty of eight specifications of misconduct in a hearing conducted pursuant to Education Law � 3020-a...

Establishment of an Employee Suggestion Program creates a contractual relationship

Posted on March 02, 2010
Establishment of an Employee Suggestion Program creates a contractual relationshipDaley v County of Erie, 59 AD3d 1087Patrick L. Daley, an Eric County employee, sued the County alleging that it had violated its Employee Suggestion Program and thus was liable for damages for ?breach of contract,?Under the Program employees who submitted cost-saving suggestions that were implemented by County were given monetary awards...

Teacher?s license revoked after hearing officer finds that the educator engaged in inappropriate sexual conduct in the presence of a student

Posted on March 01, 2010
Teacher?s license revoked after hearing officer finds that the educator engaged in inappropriate sexual conduct in the presence of a studentMatter of Moro v Mills, 2010 NY Slip Op 01558, Decided on February 25, 2010, Appellate Division, Third DepartmentStephen A...

New York City school board?s policy prohibiting teachers from political campaign buttons in school held lawful

Posted on March 01, 2010
New York City school board?s policy prohibiting teachers from political campaign buttons in school held lawfulWeingarten v New York City Board of Education, US District Court, Southern District of New York, No. 08-8702, Jan. 22, 2010A U.S. district court in New York has ruled that the New York City Board of Education?sregulation barring teachers from wearing political campaign buttons while in school does not violate teachers? First Amendment free speech rights...

Passing a psychiatric examination

Posted on March 01, 2010
Passing a psychiatric examination that indicates that the applicant is fit does not mean he or she is qualifiedSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright � 2010, Mitchell H. Rubinstein, Esq...

Accused employee does not have a right to discovery in Section 75 disciplinary proceedings

Posted on March 01, 2010
Accused employee does not have a right to discovery in Section 75 disciplinary proceedingsMatter of Utica City School Dist. v Fehlhaber, 59 AD3d 957The Utica City School District filed Section 75 disciplinary charges against Craig S. Fehlhaber, its Superintendent of Buildings and Grounds...

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