Category: Firm News

ALJ Says, “CO Did Not Commit Misconduct”

New York, New York February 4, 2005 – A New York City Correction Officer was completely exonerated of multiple charges of misconduct brought by The Department of Correction (DOC), according to the decision and recommendation of Administrative Law Judge John B. Spooner. According to the details of the November 15, 2004 disciplinary proceeding at the Office of Administrative Trials and Hearings (OATH), the correction officer was charged with being disrespectful to a correction captain and with writing a false report. In his decision, Judge Spooner noted that he found the captain’s testimony “unreasonable and insufficient” to sustain any of the charges.

Commenting on this legal victory, Norman Seabrook, president of the Correction Officers’ Benevolent Association said, “Clearly, this case was without merit from the beginning.” Mr. Seabrook continued, “I strongly urge the Commissioner to heed Judge Spooner’s recommendation and dismiss these frivolous charges.”

At the disciplinary hearing, the DOC contended that the correction officer delayed in opening a gate for the captain who was conducting her tour at the Anna M. Cross housing center on Riker’s Island. The DOC further asserted that the correction officer committed misconduct when the officer accused the captain of being disrespectful to him after the captain told the correction officer that “there is something wrong with you.” Even though it was the captain, in her supervisory capacity, who insulted the correction officer, the captain demanded that the officer submit a written report.

In the officer’s defense, the correction officer’s attorney, Marlon Martinez, of Isaacs, Devasia, Castro & Wien LLP, pointed out that the record provides various indications that the captain was both insecure and officious about her new position. Specifically, among the evidence, the record shows that after having been a captain for only three months, the captain began reciting ten orders to the housing area officers, including orders to wear the proper uniform, remain on post until properly relieved, remain in proper uniform, maintain a sanitation log with food menu and temperatures, and follow DOC rules and regulations.

In his decision, Judge Spooner noted that the captain gave no consideration to the possibility that the correction officer might not have heard her initial request to open the gate and that is what caused the momentary delay. The Judge was also particularly struck by the fact the captain could not discern why an officer would feel disrespected after being told “there is something wrong with you.” Because the DOC failed to meet its burden of establishing that the correction officer was insubordinate or that he submitted a false report, Judge Spooner recommended that both charges be dismissed.

The Judge’s recommendation was submitted to Commissioner Martin Horn for a final ruling.

Judge’s Decision Marks the First Test in Upholding Employment Protection for Victims of Domestic Violence Under NYC Human Rights Law

New York, New York September 28, 2004 – In a major landmark victory that will surely have widespread legal implications in similar cases under the New York City Human Rights Law, State Supreme Court Justice Louis B. York has found that the New York City Department of Correction (DOC) acted in ’bad faith’ and violated Local Law 1 (which bars employers from discriminating against victims of domestic violence), when the DOC improperly terminated Probationary Correction Officer Gina Reynolds, a homeless victim of domestic violence.

“Correction Officer Reynolds suffered from the callous acts of a coward and then she suffered from the egregious actions taken by the Department of Correction,” said Norman Seabrook, president of the 9,000 member Correction Officer Benevolent Association. “This union will continue to protect our mothers, daughters, and sisters from all cowardly acts, whether they occur at home or at work,” Mr. Seabrook added.

In March 2002, Officer Reynolds was evicted from an apartment where she had been seeking refuge, along with her two children, from their abusive father, a crack and alcohol abuser with a criminal history. The Health Management Division (“HMD”) at the Department of Correction granted her permission to use sick leave to find a new home.

Subsequently, Officer Reynolds alternated nightly between her car, shelters, hotels and friends’ homes, until finally informing the DOC that she could not find a new address. The department responded that she could not work without one. Faced with the threat of losing her job, even after she had explained her homelessness to HMD, she gave them her husband’s address. Twice in the next two months Officer Reynolds attempted to return there but both nights ended with her husband assaulting her and Officer Reynolds seeking police intervention.

On May 14, 2002, Ms. Reynolds moved into Safe Horizon, a domestic violence shelter. Because it restricts the release of its address, she gave the DOC the address of the organization’s headquarters.

An HMD agent went to the headquarters unannounced on June 3 to verify that Ms. Reynolds was at her “residence or place of confinement,” a requirement under DOC’s sick leave policy. Because the HMD agent declined to sign a confidentiality agreement that would have protected Officer Reynolds, Safe Horizon refused to disclose her location. As a result the DOC fired her on June 21.

When Ms. Reynolds applied for unemployment benefits, she learned she had been fired for being away from her residence.

She then filed an Article 78 action against the city. Officer Reynolds claimed that her termination was illegally based solely “on the fact that as a victim of domestic violence, she was unreachable while on sick leave due to DOC’s failure to sign the confidentiality agreement,” according to the court’s decision.

In 2001, the New York City Council amended its Human Rights Law (Local Law 1 of 2001, Sec. 1) to protect victims of domestic violence, making it unlawful, “to discharge from employment … because of the actual or perceived status of [an] individual as a victim of domestic violence.”

The main issue in this case, Justice York wrote, is “whether the Department’s sick leave abuse policy – or its implementation with respect to petitioner and those similarly situated – is impermissibly discriminatory.” On the question of her probationary period, Justice York noted that she could have been fired for no cause but not for an illegal cause.

The judge concluded that while the DOC may not have intentionally acted in bad faith, “they did act in contravention of Local Law 1 in that they failed to make reasonable accommodations for petitioner’s status as a homeless victim of domestic violence.” Accordingly, he ordered her reinstatement, with more than two years of back pay.

“This decision is very significant,” said Officer Reynolds’ attorney, Mercedes Maldonado of Isaacs, Devasia, Castro & Wien LLP. “It sends a message to victims of domestic violence that they really need to come forward at work and let their employers know that they are victims of domestic abuse so they can receive the protection that the law provides.”

The City has thirty days to appeal.

New York Law Journal, Supreme Court / IA Part 24 / Justice Richter Decision of Interest July 8, 2004

In 1982, petitioner David McGarrigle was appointed a correction officer in the New York City Department of Correction (“DOC”), at which point he became a member of respondent New York City Employees’ Retirement System (“NYCERS”). In 1991, McGarrigle chose to participate in the “Twenty-year retirement program for New York city correction members below the rank of captain”, which entitled him to retirement benefits upon completion of twenty years of “credited service”. See Retirement and Social Security Law (“RSSL”) §504-a.

In 2001, McGarrigle wished to retire, but did not yet have twenty years of “credited service”. Under RSSL §1000, a member of NYCERS can purchase up to three years of “service credit” towards retirement for up to three years of prior military duty. In order to satisfy the twenty year requirement, McGarrigle purchased nine months of prior military service rendered from November 1974 through August 1975.¹ On August 10, 2001, McGarrigle retired from the DOC with the requisite twenty years of “credited service”, nine months of which constituted “bought back” prior military service.

Under RSSL §504-a[c][2], a correction officer who retires with twenty years of “credited service” is entitled to a pension equal to one-half of his or her “final average salary”. “Final average salary” is defined as “the average wages earned… during any three consecutive years which provide the highest average wage”. RSSL §512. During his employment as a correction officer, McGarrigle’s salary was adjusted on two occasions to reflect certain “longevity increases”. In 1987, McGarrigle became entitled to a longevity increase upon his completion of five years of service as a correction officer. In 1992, McGarrigle earned a longevity increase based upon his completion of ten years of correction officer service.

In calculating McGarrigle’s “wages earned” for purposes of determining his “final average salary”, NYCERS did not include the longevity payments earned by McGarrigle upon reaching his fifth and tenth years of correction service. In this Article 78 proceeding, McGarrigle challenges NYCERS decision to exclude the longevity payments and contends that NYCERS’ determination violates the provisions of the RSSL as well as the pension impairment clause of the New York State Constitution (Article V, §7). Respondents NYCERS and the City of New York (collectively “NYCERS”) concede that the longevity adjustments were not included in the calculation of McGarrigle’s final average salary. NYCERS contends, however, that the non-pensionability of the longevity increments is mandated by the collective bargaining agreement (“CBA”) entered into between petitioner Correction Officers’ Benevolent Association (“COBA”), McGarrigle’s union, and the City of New York.²

The pension impairment clause of the New York State Constitution provides that “membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired. NYS Constitution, Article V, §7. This provision “provides valued safeguards for public employees against the diminishment or impairment of pension rights which are fixed and determined by the laws and conditions in existence at the time membership in the pension system commences”. Civil Service Employees Assoc. v. Regan, 71 N.Y.2d 653, 656 (1988).

The Court of Appeals has “consistently held that the constitutional prohibition against diminishing or impairing retirement benefits ‘prohibits official action during a public employment membership in a retirement system which adversely affects the amount of the retirement benefits payable to the members on retirement under laws and conditions existing at the time of… entrance into retirement system membership’ ”. Civil Service Employees Assoc. v. Regan, 71 N.Y.2d at 658, quoting Birnbaum v. New York State Teachers Retirement Sys., 5 N.Y.2d 1, 11 (1958). Thus, in order to prevail on his claim that the exclusion of longevity adjustments from his pension calculation violates the pension impairment clause of the State Constitution, McGarrigle must show that “‘some benefit set forth in the pension contract… is diminished or impaired’ ”. Gagliardo v. Dinkins, 89 N.Y.2d 62, 72 (1996), quoting Poggi v. City of New York, 109 A.D.2d 265, 269 (1st Dept. 1985).

Here, there is no question that longevity payments ordinarily should be included in the calculation of a retiree’s “final average salary”. A retiree’s “final average salary” is based upon “wages earned”. RSSL §512. “Wages” is defined as “regular compensation earned by and paid to a member [of the retirement system] by a public employer.” RSSL §501[24]. Thus, the longevity increments earned by McGarrigle upon reaching his fifth and tenth years of correction service became part of his annual salary and thus constitute “regular compensation”. NYCERS appears to support this view by its characterization of the longevity adjustments as “compensation increases in stated annual amounts”. November 29, 2002 Deconinck Affirmation, ¶12. Thus, as a general rule, the longevity increments must be included as part of the retiree’s “final average salary” for purposes of computing the pension benefit. See Ahr v. City of New York, 243 A.D.2d 293 (1st Dept.1977)(longevity payments are “funds ordinarily included in the calculation of pension benefits”).

Nevertheless, NYCERS argues that McGarrigle, through the collective bargaining agreement, has waived his right to the pensionability of the longevity increases. There is no question that a collective bargaining unit, such as COBA, may waive its members constitutional pension impairment rights as to funds ordinarily included in the calculation of pension benefits. See Schacht v. New York, 39 N.Y.2d 28 (1976); Ahr v. City of New York, 243 A.D.2d at 293; Rosen v. New York City Teachers’ Retirement Bd., 282 A.D. 216 (1st Dept. 1953). The agreement here provides that the longevity adjustments “shall not be computed as salary for pension purposes until after completing 20 years of service” (emphasis added). The term “service”, however, is not defined in the agreement. NYCERS argues that the phrase “20 years of service” means twenty years of correction service, which McGarrigle admittedly does not have. McGarrigle, on the other hand, contends that the phrase means twenty years of “credited service” for pension purposes, which he unquestionable does have.

The question before the Court is whether the disputed language operates as an effective waiver of McGarrigle’s statutory and constitutional right to have his longevity payments included in his pension calculation. The Court concludes that it does not. As the party asserting the waiver defense, NYCERS has the burden of showing that the term “20 years of service” meant twenty years of correction service and that McGarrigle thus waived his rights to the pensionability of his longevity payments. See Board of Education of the City of Rochester v. Nyquist, 48 N.Y.2d 97, 104 (1979)(burden of demonstrating that bargaining agreement contemplated something that the statute did not was on the party making such a claim); City of New York v. State of New York, 40 N.Y.2d 659, 669(1976)(the party asserting waiver has the burden of establishing that a waiver occurred); Rosenthal v. City of New York, 283 A.D.2d 156 (1st Dept. 2001)(municipal defendants have the burden of establishing that labor unions effectively waived rights secured to them by statute).

The Court concludes that NYCERS has failed to meet its burden. NYCERS asserts that it has “always” deferred to the Commissioner of the New York City Office of Labor Relation’s (“OLR”) “consistent” interpretation that the term “20 years of service” in the CBA means twenty years of actual service as a correction officer. Furthermore, NYCERS maintains that any ambiguity in the disputed language is dispelled by COBA’s knowledge that NYCERS would interpret the language to mean twenty years of pure correction service. In order to fully examine the history of NYCERS’ and OLR’s interpretation of the phrase “20 years of service”, the Court ordered a fact hearing to explore how and to what extent NYCERS and OLR have interpreted the provision in the past, and the parties’ understanding, at the time instant CBA was negotiated and entered into, of NYCERS’ and OLR’s interpretation.

Despite being afforded an evidentiary hearing and several opportunities to brief the issue, NYCERS has failed to convince this Court that OLR or NYCERS had a long-standing or consistent interpretation of the disputed language, or that representatives of COBA were aware of that interpretation at the time the CBA was entered into. To begin, NYCERS has not submitted any affidavit from a representative of OLR, nor did they call any witnesses from OLR at the hearing. Thus, the Court is unable to ascertain what, if anything, led OLR to conclude that the disputed term referred to correction service only. Indeed, the Court does not know if OLR did anything more than just read the CBA that is the subject of this litigation.

The witnesses that did testify at the hearing did not sufficiently describe any long-standing policy nor did they provide adequate proof that COBA had knowledge of OLR’s interpretation of the disputed language. Kenneth Godiner, an assistant director of New York City’s Office of Management and Budget, testified that he was responsible for “costing” labor contract proposals, and had, since 1987, personally attended five different collective bargaining sessions between COBA and the City. Mr. Godiner testified that during these sessions, COBA was provided with a spreadsheet containing an analysis of the pension costs of the CBA’s longevity increments. According to Mr. Godiner, in preparing the spreadsheet, the City made the “assumption” that only actual correction service would be used to determine whether a member met the twenty year threshold at which the longevity increases would be pensionable. Mr. Godiner testified that since the spreadsheet used the member’s entry date into DOC as the basis for determining whether the member had reached twenty years, it was clear on its face that only actual correction service was contemplated.

NYCERS argues that since COBA was provided with the spreadsheet at the bargaining negotiations, it was aware of the City’s “assumption”. This argument fails for a number of reasons. To begin, it is unclear from Mr. Godiner’s testimony whether COBA actually received the spreadsheet. He stated that he was “not certain” and that he “might be mistaken” about his belief that COBA representatives were consulted when the costing methodology was developed. Although he stated that the City “regularly communicated” the costing analysis to COBA and that he “believed” the spreadsheet was provided to COBA, he did not provide any specifics as to when the document was provided or to whom it was given.

Nor is it clear that COBA was specifically alerted to the assumptions underlying the spreadsheet calculations. When asked if COBA representatives were aware of the assumptions contained on the spreadsheet, Mr. Godiner simply answered that he “believed” that they were, and that he could not recall whether COBA objected to the assumptions. However, Mr. Godiner did not describe any specific conversations where the assumptions about the term “years of service” were discussed with COBA. Moreover, there was no explanatory text contained on the spreadsheet, nor any other supporting documentation provided to COBA, which would have explicitly made the City’s assumption apparent. Indeed, when Mr. Godiner was asked where in the spreadsheet was it made clear that longevity increases are pensionable only after twenty years of correction service, Mr. Godiner conceded that “[y]ou won’t find that in here.”

The validity of the assumption underlying the spreadsheet’s figures was seriously undercut by testimony Mr. Godiner gave on cross-examination. After repeatedly stating that the longevity analysis on the spreadsheet was based solely on correction service, Mr. Godiner was asked to review a number of “side letters” to the CBA which allowed for transferees from the Police Department, Fire Department, and Housing Police Department to supplement their correction service with their prior service in those agencies for longevity purposes. After reviewing the side letters, Mr. Godiner conceded that longevity payments could be earned and pensionable based on service other than correction service, and that the spreadsheet did not account for such situations. It is clear to this Court that, as with any such planning document, the spreadsheet was merely a projection of pension costs, and could not have included every possible scenario, such as the purchase of past fire department and police service, or, as is relevant here, prior military service. Thus, the Court concludes that the spreadsheet does not provide sufficient evidence that COBA was specifically aware that the City would later take the position that longevity payments are only pensionable after twenty years of correction service.

The remaining witnesses at the hearing did not provide any relevant testimony which would have shown that COBA was aware the City’s interpretation of the disputed term. Ira Kleinburd, section supervisor of DOC’s payroll management department, testified that in his experience, no correction officer has earned longevity pay based upon prior military service. However, the issue before the Court is the pensionability, not the earning of longevity pay. It is undisputed that McGarrigle earned the right to longevity payments after five and ten years as a correction officer, and that he did not seek to use his military service to be entitled to longevity earnings. Since Mr. Kleinburd testified that he has nothing to do with retirement benefits, his testimony sheds no light on the issues here. Likewise, Karen Mazza, general counsel for NYCERS, had no involvement in the collective bargaining process, and thus could not testify as to COBA’s understanding of the term “20 years of service”.

There is no doubt that a union’s waiver in a CBA of statutory and constitutional rights must be “clear” and “unmistakable”. Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998). See also Fuentes v. Shevin, 407 U.S. 67, 95 (1972)(waiver of constitutional rights in any context must, at the very least, be clear); L. K. Comstock & Co. v. New York Convention Center Dev. Corp., 179 A.D.2d 322 (1st Dept. 1992)(under certain conditions a constitutional right may be waived by contract but that waiver must be clear). A review of the CBA leaves no doubt that the disputed language is ambiguous. As noted, the CBA provides that longevity payments “shall not be computed as salary for pension purposes until after completing 20 years of service” (emphasis added). In light of the fact that the term “service” is not defined in the agreement, it is possible, as the City contends, that the phrase “twenty years of service” could be interpreted to mean correction service only. However, it is also possible to interpret the term, as COBA argues, to mean “credited service”, which is a term of art under the pension law, particularly in light of the fact the disputed language sets forth the years of service necessary to include longevity pay “for pension purposes”. Because the term can be interpreted in two different ways, it is clearly ambiguous.

Ms. Mazza’s testimony underscored the ambiguity of the disputed phrase. She testified that NYCERS reviews the relevant CBA in order to determine whether longevity payments are pensionable. She testified that NYCERS consults OLR if they have a question regarding the interpretation of the CBA that cannot be resolved by simply looking at the language. She further stated that in 1999, such a question arose as to the pensionability of a correction captain’s longevity earnings under similar language in the corrections captains’ CBA, and that NYCERS sought an opinion from OLR. Clearly, the fact that NYCERS could not interpret the term by reviewing the language of the contract highlights the ambiguity of the term. Indeed, in a letter dated May 25, 1999, Milton Aron, Deputy Director of Operations at NYCERS, explicitly concedes that the term “years of service” is “ambiguous”. And in an October 18, 2001 e-mail, Norman Rosenfeld, from NYCERS Data and Benefit Certification Unit, states that the issue is “currently under consideration” and that NYCERS’ procedure to exclude non-correction service “may change depending on the decisions made”.

In light of the ambiguity of the language, the lack of a consistent interpretation by NYCERS and OLR, and no proof that COBA agreed with the assumptions purportedly contained in the spreadsheet, the Court must construe the disputed term in McGarrigle’s favor and therefore find that there was no valid waiver of the pensionability of his longevity payments. See Sanders v. New York City Transit Authority, 130 Misc.2d 719 (N.Y.City Civ. Ct. 1985)(“[i]n the face of two possible interpretations, one not providing for waiver of a significant statutory protection, the presumption must be against waiver”). Accordingly, it is ORDERED and ADJUDGED that this Article 78 petition is granted; and it is ORDERED and ADJUDGED that NYCERS shall re-calculate McGarrigle’s pension benefit, prospectively and retroactively, so as to include in the calculation of “final average salary” the longevity payments earned by him upon his completion of five and ten years correction service; and it is further ORDERED that the Clerk is directed to enter judgment accordingly. This constitutes the decision and judgment of the Court.

In Dispute Over Retirement Requirements, New York State Supreme CourtJudge’s Decision Says Collective Bargaining Agreement’s ‘Years of Service’ Language Is ‘Ambiguous’ and Open to Multiple Interpretations

New York, New York June 30, 2004 – In response to an Article 78 lawsuit filed by The Correction Officers’ Benevolent Association, on behalf of New York City Correction Officer, David McGarrigle, against the City of New York , State Supreme Court Justice Rosalyn Richter has ruled that the New York City Employees’ Retirement System (NYCERS), must re-calculate Officer McGarrigle’s pension benefit, prospectively and retroactively, so as to include the calculation of “final average salary”, the longevity payments earned by him upon his completion of five and ten years of correction service.

In 2001, after having served as a Correction Officer for nineteen years and three months, Mr. McGarrigle purchased nine months of prior military service rendered from November 1974 through August 1975. On August of 2001, Mr. McGarrigle retired from the Department of Correction with the requisite twenty years of service, nine months of which constituted “bought back” prior military service. However, in calculating Mr. McGarrigle’s “wages earned”, for the purpose of determining his “final average salary”, NYCERS did not include the longevity payments earned by Mr. McGarrigle upon reaching his fifth and tenth years of correction service. In his lawsuit, Mr. McGarrigle challenged NYCERS’ decision to exclude the longevity payments, and contended that NYCERS’ determination violated the provisions under Retirement and Social Security Law as well as the Pension Impairment Clause of the New York State Constitution. NYCERS argued that the non-pensionability of the longevity increments was mandated by the collective bargaining agreement between the Correction Officers’ Benevolent Association, Mr. McGarrigle’s union, and the City of New York.

According to Mr. McGarrigle’s attorney, Mercedes Maldonaldo, of Isaacs, Devasia, Castro & Wien LLP, “The central issue at hand in this case was whether the language in the collective bargaining agreement could diminish a Correction Officer’s right to have military service credit and other types of credited service count towards the years of service required for pensionabilty of longevity earnings. The judge confirmed that a Correction Officer can in fact use credited service such as military service without forfeiting the pensionabilty of their longevity earnings. This decision may have widespread implications among other uniformed unions who have similar language in their collective bargaining agreements.”

“This decision is a victory for all New York City Correction Officers,” said Norman Seabrook, president of the 9,000 member Correction Officers’ Benevolent Association. “The City has tried unsuccessfully to manipulate the language in our collective bargaining agreement to reduce our officers’ pension benefits. This union will continue to look after our members’ financial interests.”

The city now has 30 days to appeal the court’s decision.

New York, New York April 1, 2004 – In response to a lawsuit filed by two Rockland County Correction Officers, State Supreme Court Justice William E. Sherwood has ruled that the Rockland County Sheriff’s Department must continue to provide 207-c benefits to correction officer Zane Arok, who was injured while participating in the mandatory Defensive Tactics and Training Course, a self-defense program designed to prepare correction officers for dealing with problematic inmates. The Sheriff’s Department settled the lawsuit with the other correction officer, Maureen Cawley, who was injured while trying to control a disruptive inmate.

According to the complaint filed in New York State Supreme Court in August of 2003, Joey Jackson, of Isaacs, Devasia, Castro & Wien LLP, argued that the Rockland County Sheriff’s Department ‘arbitrarily and capriciously’ denied veteran correction officers Zane Arok and Maureen Cawley Section 207-c benefits, after they incurred work-related injuries. The purpose behind Section 207-c is to compensate specified municipal employees for injuries incurred in the performance of special work related to heightened risks and duties.

“This decision is a victory for all Rockland County correction officers,” said William Hickey, president of the Correction Officers Benevolent Association of Rockland County. “They refused to give these two veteran officers the benefits which they were clearly entitled to and they have needlessly put us at impasse in collective bargaining negotiations for a new contract.”

Commenting on the legal implications stemming from Judge Sherwood’s decision, Mr. Jackson said, “Clearly the incident involving Ms. Cawley was a textbook example of why Section 207-c benefits were created in the first place; to protect municipal employees with dangerous job responsibilities.”

Mr. Jackson continued, “Even more significant though, is that Judge Sherwood clarified that when a municipal employee is participating in an employment required self-defense course, that employee remains under the auspices of the employer and in this case, it was the Sheriff’s Department.”

Rockland County correction officers have been working without a contract since December of 2000.

Commission Says Female Applicants for Bridge Painter Position Were More Qualified Than the Men Actually Hired

New York, New York September 17, 2003 – Following charges of discrimination filed in May of 2002, by the Structural Steel and Bridge Painters of Greater New York, Local Union 806, and four female Bridge Painters, the Equal Employment Opportunity Commission (EEOC) has found reasonable cause to believe the New York City Department of Transportation discriminated against four female applicants for the position of Bridge Painter. The women and Local Union 806, their union, alleged that the Department of Transportation refused to hire female applicants referred by Local 806 to the DOT for the position of Bridge Painter and instead, hired less qualified male applicants.

“This decision confirms what we’ve known for years,” said Local 806 Business Representative, Angelo Serse. “There is no place for discrimination of any kind, and the fact that it’s a municipal agency makes it even more disgraceful. Hopefully, this ruling will pave a path of employment opportunities for many other qualified female Bridge Painters in the future.”

The charges alleged that in each year since 1998 the Department of Transportation interviewed for Bridge Painter positions and, during that time, the four women submitted resumes as applications. In 1999, no female applicant was granted an interview. In 2000, only one of the women was interviewed. She was not hired and was also the only female interviewed for a Bridge Painter position. In 2001, again, only one female applicant was interviewed and she too was not hired.

At the time of their applications, all four women had been employed as Bridge Painters in the private sector for several years, were graduates of certified apprenticeship program and met the DOT’s requirement of sixty months experience. According to the Complainants, eight newly hired, male employees were not apprenticeship program graduates and at least one male employee did not have sixty months of experience. The EEOC agreed that the four women were more qualified than some men actually hired stating that “the record shows that [the Complainants are] more qualified than at least three of the males hired…”

One Complainant also alleged that after learning that she would not be interviewed in 2000, she called the DOT’s personnel office and was told that she would not be interviewed because she did not have a commercial driver’s license. Although such a license is required for the Bridge Painter position, the Complainants alleged that the DOT hired thirteen male Bridge Painters in 2000, that at least three of them did not possess the license when hired, that these men were given a grace period to obtain the license during which they were permitted to work at full pay and benefits and that no female applicant to the Bridge Painter position has ever been afforded this opportunity. In fact, in the history of the DOT, no female has ever been employed in the Bridge Painter civil service title.

The EEOC’s decision includes an invitation to the parties to engage in conciliation. According to the attorney representing Local Union 806 and the four female Bridge Painters, Howard Wien, of Isaacs, Devasia, Castro & Wien LLP, a demand for placement, as well as salary and benefits back to the date the complainants submitted their resumes, was filed with the EEOC immediately after the reasonable cause determination was made.

COBA President Norman Seabrook Claims DOC Commissioner Horn ‘Vindictively Retaliated’ Against COs After COBA Called For the Ouster of Commissioner Horn

New York, New York August 22, 2003 – Norman Seabrook, president of the 8,400-member New York City Correction Officers’ Benevolent Association (COBA), yesterday filed a federal complaint in United States Southern District Court against the New York City Department of Correction, alleging that the Commissioner of the Department of Correction, Martin Horn, vindictively retaliated against his members by filing disciplinary charges against them after they were unable to report for duty on the day of the blackout and the next day, August 15, 2003.

According to the federal complaint, many correction officers who, like most of New York City workers, were unable to report for work on Thursday evening and on Friday due to the massive blackout, have already been notified by the DOC that the DOC intends to slap them with a disciplinary charge of Absent Without Leave (“AWOL”). No other agency in the City of New York other than DOC has filed disciplinary charges against employees who were unable to report for duty during the blackout. These disciplinary charges came in the wake of Mr. Seabrook’s call for Commissioner Horn’s termination for jeopardizing the safety and security of correction officers by instituting layoffs in May 2003.

“I have a fiduciary responsibility to protect the safety of 8,400 New York City correction officers. The fact of the matter is that since Commissioner Horn commenced these dangerous layoffs, there has been a 20% increase in attacks on correction officers. Of the 315 correction jobs lost, at least 84 of the eliminated positions involved direct supervision of inmates,” Mr. Seabrook said. “I also have a duty to communicate to every correction officer and inform them that their union will not sit by idly while their lives at risk. Clearly, by slapping these officers with ludicrous charges of being “AWOL”, during the worst blackout in United States history, the commissioner has sunk to a new low.”

Mr. Seabrook continued, “Instead of vindictively retaliating against me and my members, for exercising our constitutional rights to free speech, Commissioner Horn should focus on protecting the well being of the dedicated men and women who boldly protect the public from society’s worst criminals.”

Mr. Seabrook, on behalf of COBA, filed the complaint in federal court as the charges allege that the DOC violated Mr. Seabrook’s First Amendment rights under the United States Constitution and the DOC violated the rights of COBA members to equal protection under the law.

Correction Officers Who Were Suspended for Failing to Detect Contraband at the Queens Detention Complex Will Be Fully Reimbursed for Time Lost

New York, New York July 30, 2003 – New York City’s Civil Service Commission unanimously reversed an Administrative Law Judge’s decision and awarded New York City Correction Officers Keith Morgan and Patricia Jordan back pay for time lost during their suspensions of 45 days and 35 days, respectively.

The two veteran correction officers, who serve in the Queens Detention Complex (QDC), were accused of allegedly failing to detect the introduction of an automatic pistol that ultimately found its way into the hands of an inmate. Correction Officer Morgan had been the housing area officer responsible for searching the inmates and Correction Officer Jordan had been the package room officer responsible for searching their packages.

According to the Department of Correction, the two officers failed to detect the gun. The DOC also contended that Officer Jordan was “tired and therefore was unable to perform her job efficiently.” Despite the fact that the DOC acknowledged that it was possible for the gun to get in through intake or by another visitor, the DOC maintained that it was impossible for the gun to have entered the facility the day before. The DOC argued that the gun entered the facility as an accident because Officer Jordan did not properly inspect the inmate’s girlfriend’s package, where the gun had been stashed and because Officer Morgan was “bored with his job and lacked concern for his duties and therefore was performing them inefficiently.”

At the Civil Service Commission hearing, the correction officers’ attorney, Joey Jackson, of Isaacs, Devasia, Castro & Wien LLP, argued that the DOC’s charges were flawed for a number of reasons. First, Mr. Jackson asserted that the only evidence against the two officers was the inmate’s own self-serving statement claiming that the gun was in one of his shoes. Second, Mr. Jackson noted that the inmate’s girlfriend had denied to the officers that she was carrying a gun. Furthermore, Mr. Jackson noted that the Supervising Investigator for the Department of Investigation interviewed the inmate and at no point during the interview did the inmate claim that his girlfriend had brought the gun or that he had asked her to; the inmate was arrested and charged with promoting contraband, yet no charges were brought against his girlfriend.

After a detailed review of the evidence presented, the Civil Service Commission reversed the determination by the ALJ and the Department of Correction, noting that the inmate’s testimony was the only evidence against Officers Jordan and Morgan. Furthermore, they noted that “there was no causal link between the officers and the gun….and that the mere presence alone is not enough to conclude that the two correction officers are at fault for the gun’s presence.”

Commenting on the commission’s decision, Norman Seabrook, reelected president of the Correction Officers’ Benevolent Association for a third consecutive term said, “This case was without merit from the beginning. These two veteran officers have a combined 30 years of experience with the DOC and they never have been disciplined or reprimanded for allowing contraband into the institution. Instead of trying to find fault with these officers, the DOC should recognize these two veterans for their continuous dedication and professionalism that they bring to the Department.”

State Supreme Court Justice Orders Sheriff’s Department to Restore 207-c Benefits to Two Correction Officers

New York, New York June 4, 2003 – In response to a lawsuit filed by two Rockland County Correction Officers, State Supreme Court Justice William A. Kelly has ruled that the Rockland County Sheriff’s Department must continue to provide 207-c benefits to two officers who were injured while performing their duties. According to the complaint filed in New York State Supreme Court in September of 2002, the Rockland County Sheriff’s Review Committee had originally granted both officers 207-c benefits for injuries incurred during the course of their public duties, but then the department rescinded those benefits without providing a reason and without providing the officers their federal right to a hearing prior to terminating their 207-c benefits. The purpose behind Section 207-c is to compensate specified municipal employees for injuries incurred in the performance of special work related to heightened risks and duties.

On April 17, 2001, correction officer David Oliver, crushed his left hand in between two doors in the course of inspecting an area for contraband. Despite immense pain, Officer Oliver continued to report to work. When the pain grew worse, Officer Oliver consulted his family doctor, who referred him to an orthopedic surgeon. The surgeon advised him to wear a splint and recuperate at home for four to five days. As his hand continued to be in pain, he requested benefits under General Municipal Law 207-c in July of 2001.

Four months later, in November of 2001, the Administrative Review Committee approved Officer Oliver’s request for 207-c status for the April 17, 2001 incident. The approval, however, was only granted for 180 days beginning on April 17, 2001 and expiring on October 17, 2001. No reason was offered for the October 17, 2001 expiration date for Officer Oliver’s 207-c benefits. The county credited back to Officer Oliver a total of 52 hours of vacation accruals and 28 hours of sick time accruals which were taken from him since the incident.

Since Officer Oliver continued to be disabled as a result of the April 17, 2001 injury, he was forced to re-apply to the Administrative Review Committee for 207-c status. In March of 2001, the committee notified Officer Oliver to submit to a second independent medical examination.

In a report dated April 9, 2002, the department’s examiner concluded that, “It is my opinion that the examinee continues to demonstrate a mild partial disability. Some permanency is anticipated. He has not reached a medical end point.” One month later, in May of 2002, the review board extended Officer Oliver’s request to extend his 207-c status. However, the Review Board summarily terminated Oliver’s 207-c benefits retroactive to April 9, 2002. The committee gave no explanation for its decision to deny benefits after April 9, 2002, other than to say that it was based partly on the independent examiner’s most recent report. The county failed to afford Officer Oliver a hearing before terminating his 207-c benefits after April 9, 2002 and ignored requests to cease their unlawful conduct.

On December 18, 1997, while working at the Rockland County Jail, correction officer Evan Washington hurt his back, his right wrist and his left pinky finger while restraining an inmate during a fight with another inmate. Six days later, Officer Washington requested 207-c benefits for his injuries sustained on December 18th.

Over a year later, the Administrative Review Committee finally notified Officer Washington that they approved his request. The award was made retroactive to the date of the December 18, 1997 incident.

On January 30, 2002, Officer Washington submitted to an independent medical examination by the department’s doctor. Then, on May 3, 2002, the Administrative Review Committee notified Officer Washington that it was revoking his 207-c status retroactive to January 30, 2002, the date on which he was last examined by the department’s examiner. Like Officer Oliver before him, Officer Washington was provided neither an explanation for this decision, nor afforded a hearing before the decision was made.

In an effort to avoid litigation, the attorney representing both correction officers, Mercedes M. Maldonado, of Isaacs, Devasia, Castro & Wien LLP, sent the department three letters requesting the department to restore the officers’ 207-c benefits and grant them a hearing if the department wished to terminate their benefits. All three requests were ignored.

In the complaint, Ms. Maldonado argued that the Sheriff’s Department’s Administrative Review Committee decisions were in violation of the due process clause of the Fourteenth Amendment of the United States Constitution.

In his ruling on the case, Justice Kelly asserted that “Once granted, a recipient has a vested property right in GML 207-c benefits. This vested property right may not be terminated without due process. In this case, the discontinuance of the officers’ benefits without a hearing amounted to the taking of property without due process.” Accordingly, the judge vacated the decision of the Administrative Review Committee and returned the officers to their status prior to the termination of their benefits.

Commenting on the judge’s ruling, William Hickey, President of the Rockland County Correction Officers’ Benevolent Association said, “This case is yet another example of the intransigence of officials in the Rockland County Sheriff’s Department. They refused to give these two veteran officers the due process hearing, which they were clearly entitled to and they have needlessly put us at impasse in collective bargaining negotiations for a new contract.”

Officers Seek to Hold Department Liable for Damages After Terminating Their 207-c Benefits Without a Hearing

New York, New York September 26, 2002 – Two Rockland County Correction Officers who were injured while performing their duties, have filed suit under 42 U.S.C. §1983 and Article 78 of the Civil Practice Law and Rules, against the Rockland County Sheriff’s Department and its legal counsel, Joseph Suarez, among others, for failing to afford them their constitutional right to a hearing before the department decided to terminate their 207-c benefits.

According to the complaint filed in New York State Supreme Court, the Rockland County Sheriff’s Review Committee had originally granted both officers 207-c benefits for injuries incurred during the course of their public duties, but then the department rescinded those benefits without providing a reason and without providing the officers their federal right to a hearing prior to terminating their 207-c benefits. The purpose behind Section 207-c is to compensate specified municipal employees for injuries incurred in the performance of special work, related to the nature or heightened risks and duties.

On April 17, 2001, correction officer David Oliver, crushed his left hand in between two doors in the course of inspecting an area for contraband. Despite immense pain, Officer Oliver continued to report to work. When the pain grew worse, Officer Oliver consulted his family doctor, who referred him to an orthopedic surgeon. The surgeon advised him to wear a splint and recuperate at home for four to five days. As his hand continued to be in pain, he requested benefits under General Municipal Law 207-c in July of 2001.

Four months later, in November of 2001, the Administrative Review Committee approved Officer Oliver’s request for 207-c status for the April 17, 2001 incident. The approval however, was only granted for 180 days beginning on April 17, 2001 and expiring on October 17, 2001. No reason was offered for the October 17, 2001 expiration date for Officer Oliver’s 207-c benefits. The county credited back to Officer Oliver a total of 52 hours of vacation accruals and 28 hours of sick time accruals which were taken from him since the incident.

Since Officer Oliver continued to be disabled as a result of the April 17, 2001 injury, he was forced to re-apply to the Administrative Review Committee for 207-c status. In March of 2001, the committee notified Officer Oliver to submit to a second independent medical examination, scheduled for April 7, 2002. Officer Oliver complied and the examination took place as scheduled.

The independent examiner concluded that, “It is my opinion that the examinee continues to demonstrate a mild partial disability. Some permanency is anticipated. He has not reached a medical end point.” One month later, in May of 2002, the review board extended Officer Oliver’s request to extend his 207-c status. However, the Review Board summarily terminated Oliver’s 207-c benefits on April 9, 2002. The committee gave no explanation for its decision to deny benefits after April 9, 2002, other than to say that it was based partly on the independent examiner’s most recent report. The county failed to afford Officer Oliver a hearing before terminating his 207-c benefits after April 9, 2002 and has ignored requests to cease their unlawful conduct.

On December 18, 1997, while working at the Rockland County Jail, correction officer Evan Washington hurt his back, his right wrist and his left pinky finger while restraining an inmate during a fight with another inmate. Six days later, Officer Washington requested 207-c benefits for his injuries sustained on December 18th. In addition, Officer Washington applied for and received workers’ compensation benefits. The workers’ compensation ’Notice of Decision’ confirmed that Officer Washington had work-related injuries to the back, right wrist and left 5th finger.

Approximately one year later, Officer Washington had surgery performed on his right wrist and submitted yet another request for 207-c benefits. Over a year later, the Administrative Review Committee finally notified Officer Washington that they approved his request. The award was made retroactive to the date of the December 18, 1997 incident.

On February 4, 2000 and again on January 30, 2002, Officer Washington submitted to two independent medical examinations. The January 30th examination concluded that Officer Washington’s “intermittent lost time” from work “was necessary.” However, on May 3, 2002, the Administrative Review Committee notified Officer Washington that it was revoking his 207-c status retroactive to January 30, 2002, the date on which he was last examined by the independent examiner. Like Officer Oliver before him, Officer Washington was provided neither an explanation for this decision, nor afforded a hearing before the decision was made. The attorney representing both correction officers, Mercedes M. Maldonado, of Koehler & Isaacs, has argued that the sheriff’s department’s administrative review committee decisions were arbitrary and capricious and in violation of the due process clause of the Fourteenth Amendment.