New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Matter of Lisa Capece v Margaret Schultz, as Community Superintendent of Community School District 31

Petitioner brought about this Article 78 proceeding to review a determination of Margaret Schultz, Community Superintendent of Community School District 31 of the New York City Department of Education terminating petitioner from her position as a probationary public school teacher. Petitioner began teaching in 2005. Her probationary term was supposed to end in 2008 but she was allegedly coerced into an “Extension of Probation Agreement” in 2007 which extended her probationary period by one year to allow petitioner to demonstrate improvement in her alleged areas of difficulty. During the extended probationary period, petitioner received two unsatisfactory evaluations. She was also required to attend several disciplinary meetings due to alleged instances of misconduct for violating the school’s telephone policy and altering the program schedule without prior permission. Due to these incidences, the Superintendent notified petitioner of her termination. Petitioner then appealed this decision to the Department of Education’s Office of Appeals and Reviews. A hearing was held and the recommendation to discontinue petitioner’s probationary service was upheld. The Superintendent re-affirmed her decision and petitioner commenced this Article 78 appeal.

Petitioner alleged in her petition that she was the victim of harassment and discriminatory treatment in retaliation for her union activities. She argued that she had received only satisfactory reviews until she became involved in activities as the union co-chapter leader. Petitioner even filed a complaint with the Chancellor of the Department of Education asserting that she was being subjected to harassment but the complaint was denied due to lack of evidence. Respondents maintain that a probationary employee can be terminated at will and since petitioner’s record show unsatisfactory work performance and misconduct, the termination was not made in bad faith.

The Court feels that petitioner met her evidentiary burden of producing sufficient evidence to raise a material issue of fact regarding whether or not her termination was made in bad faith as a retaliatory measure to punish her for her activities in the local teachers’ union. The evidence shows that the unsatisfactory performance evaluations and alleged incidences of professional misconduct occurred only while petitioner was engaged in union activities and therefore the retaliatory nature of petitioner’s termination cannot be determined on the facts so far provided. The Court feels that judicial review is mandated and the matter must proceed to trial.

Accordingly, the Court granted the petition to the extent that the parties must appear for a preliminary conference. The trial date for this case is still pending.

Read more about this Article 78 termination case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Elizabeth Miller Nabors v Town of Somers

Petitioner, Elizabeth Miller Nabors, began working part time for the Town of Somers in 2003. Though she worked about 10 hours a week, Nabors submitted claims to the Unemployment Insurance Division of the New York State Department of Labor (UID) stating that she was not working at all. Once her position became full time, she received notice from the UID informing her that she was not entitled to the benefits that she had received and was subject to a penalty due to her misrepresentation of her eligibility. Nabors then requested a hearing before the Unemployment Insurance Appeal Board which resulted in the administrative law judge confirming the initial determination. The Town then commenced a disciplinary action against Nabors charging her with two counts of misconduct and one count of incompetence and placed her on an unpaid suspension. A hearing was scheduled for March 2006.

Nabors’ counsel requested the hearing be adjourned to a later date. Due to various other adjournments, the hearing was not conducted until July 2006. The hearing officer issued a decision in January 2007 finding Nabors guilty of all three charges. The final resolution, terminating petitioner’s employment was entered in May 2007; 15 months after Nabors suspension began.

Nabors then commenced this appeal to review the decision, alleging wrongful discharge, and to recover back pay for the period of the suspension exceeding 30 days. Since the determination to terminate petitioner was supported by substantial evidence and was not so severe a penalty as to shock the conscience, the Court dismissed this part of the petition. The Court did however agree that Nabors was due to receive back pay for the period of time she was suspended beyond the 30 day limit even though she was found guilty of the charges against her.

Accordingly, the Court granted the petition to the extent of awarding petitioner back pay, otherwise denied the proceeding, and remitted the matter to Supreme Court for a hearing to determine the amount of back pay to be awarded.

Read more about this Article 78 employment law case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Supreme Court Justice Donald Cerio ruled in two Article 78 proceedings involving the town of Sullivan and a proposed mining operation. Petitioners brought about the appeal to annul Local Law No. 6 regarding Mineral Resource Use and Mining/Quarrying Use districts in the town. Cerio’s ordered the Town of Sullivan Zoning Board of Appeals (ZBA) to holding a hearing to determine whether mining is a permitted use in an agricultural zone. He based his decision on a lack of observance of the State Quality Environmental Review Act and a lack of a certified transcript from the ZBA’s last hearing. Many Quarry Road residents are protesting the mining operation and feel that mining should not be permitted.

The ZBA must make a decision within sixty days of the Judge’s ruling.

Read more about this Article 78 zoning case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Wayman Neely v Thomas DiNapoli, as State Comptroller

Petitioner brought about this Article 78 appeal to review a determination of the Comptroller denying him his applications for accidental and performance of duty disability retirement benefits. In 1985, petitioner, a corrections officer, fell from a ladder during a training exercise and injured himself. Petitioner sustained calcaneal fractures of both ankles and had to undergo multiple surgeries and rehabilitation. In 2000, petitioner reinjured his ankles while attempting to settle a disturbance between two inmates. Petitioner continued to work until he retired in 2003.

Petitioner thereafter applied for accidental disability retirement benefits and performance of duty retirement benefits and was denied. The Hearing Officer upheld the denials and respondent adopted the decision. Petitioner then commenced this Article 78 proceeding to review the determination.

The Hearing Officer determined that since an accident must be the result of a completely unforeseeable event during the performance on routine duties, petitioner’s injury would not fall under this definition and therefore the application must be denied. Petitioner bore the burden of proving the 1985 incident constituted an accident and although the misstep may have been caused by sweat on the ladder rungs, this is not sufficient proof for an award of accidental disability retirement benefits.

In regards to petitioner’s application to performance of duty retirement benefits for the injury sustained in 2000, while there is no question that petitioner is permanently disabled, the issue of whether this disability is directly the result of the incident in 2000 is debatable. The Retirement System’s board certified orthopedic surgeon believed that the disability was due to posttraumatic osteoarthritis caused by the bilateral fractures sustained in 1985 and could not have resulted solely from the 2000 injury. Since respondent has the exclusive authority to resolve conflicts in medical opinion and the respondent’s doctor’s opinion was rational and fact-based upon the examination of petitioner, the Court will not disturb respondent’s decision.

Accordingly, the Supreme Court confirmed the determination, without costs, and dismissed the petitioner.

Read more about this Article 78 disability retirement benefits case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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