Category: Firm News

Westchester Wrongly Denied CO Time Off, Arbitrator Decides
By Mark Toor

June 7, 2011 – The Westchester County Department of Correction must come up with a better system for ensuring that Correction Officers can take their time off, an arbitrator ruled last month.

The May 12 ruling by Dennis J. Campagna came in the case of Patrick Garrett, a member of the Westchester Correction Officers Benevolent Association who requested a day off during Memorial Day weekend in 2009. A Captain denied his request, noting that outside of those on vacation for the entire week, only one Correction Officer was allowed to take the day off and someone else had already signed up.

New Rule on Vacation Leave
The union charged that the county had violated the contract, which allows at least 8.33 percent of a unit’s workforce to take off at the same time. The contract calls for this rule to be followed in the case of personal leave or supplemental time off, said Mercedes Maldonado of Isaacs, Devasia, Castro & Wien LLP, who represented the union. However, she said, it does not cover holiday or vacation leave.

“Correction work is one of the most stressful jobs out there,” Alonzo West, president of WCOBA, said in an interview. “People need their time off so they can come to work with a clear head and have some kind of normality in their lives.”

“You had people who couldn’t use their time under a contract that said time off was guaranteed if you had it,” he said. “We gave up things years ago to get these provisions in the contract.”

Until recently, Ms. Maldonado said, the county had followed the 8.33-percent rule for holiday and vacation leave, but then instituted its one-at-a-time rule for such leave. “This reduced the opportunity to take time off,” she said an interview. Under its own guidelines, the county could have had nine COs off, and when Mr. Garrett asked for a day it had only six taking off.

The union reasoned that because the contract required that holiday time be used before the end of the next calendar quarter, the county was obligated to make all efforts to allow an employee to use that time.

The county responded that staffing was a management prerogative and that no one would lose a day off, since COs who do not use their accrued time by the end of the quarter are paid for it in cash.

Must Make ‘Reasonable Efforts’
The arbitrator agreed with the union’s contention that the county must do everything it can to ensure that COs can use their time off. Mr. Campagna also found that “there is no logical reason” why the county should deny a CO’s request for the day off when the maximum number allowed off had not been reached.

The decision ordered the county to stop denying days off when that maximum was not reached, and to make “reasonable efforts” to ensure holidays or time off outside of a full week could be taken.

“It balances the interests involved,” Ms. Maldonado said, meaning both the county’s desire not to go below minimum staffing and the union’s desire that members can take time off.

“We’re still reviewing the decision and drafting a memorandum as to how it would be implemented,” said Justin Pine of the Westchester Department of Correction.

Mr. West said the time-off dispute was further evidence that the Correction Department “doesn’t want to honor the collective-bargaining agreement. What they can’t take away in contract negotiations, they try to litigate away or legislate away.”

By Mark Toor

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June 7, 2011 – The Westchester County Department of Correction must come up with a better system for ensuring that Correction Officers can take their time off, an arbitrator ruled last month.

The May 12 ruling by Dennis J. Campagna came in the case of Patrick Garrett, a member of the Westchester Correction Officers Benevolent Association who requested a day off during Memorial Day weekend in 2009. A Captain denied his request, noting that outside of those on vacation for the entire week, only one Correction Officer was allowed to take the day off and someone else had already signed up.

New Rule on Vacation Leave
The union charged that the county had violated the contract, which allows at least 8.33 percent of a unit’s workforce to take off at the same time. The contract calls for this rule to be followed in the case of personal leave or supplemental time off, said Mercedes Maldonado of Isaacs, Devasia, Castro & Wien LLP, who represented the union. However, she said, it does not cover holiday or vacation leave.

“Correction work is one of the most stressful jobs out there,” Alonzo West, president of WCOBA, said in an interview. “People need their time off so they can come to work with a clear head and have some kind of normality in their lives.”

“You had people who couldn’t use their time under a contract that said time off was guaranteed if you had it,” he said. “We gave up things years ago to get these provisions in the contract.”

Until recently, Ms. Maldonado said, the county had followed the 8.33-percent rule for holiday and vacation leave, but then instituted its one-at-a-time rule for such leave. “This reduced the opportunity to take time off,” she said an interview. Under its own guidelines, the county could have had nine COs off, and when Mr. Garrett asked for a day it had only six taking off.

The union reasoned that because the contract required that holiday time be used before the end of the next calendar quarter, the county was obligated to make all efforts to allow an employee to use that time.

The county responded that staffing was a management prerogative and that no one would lose a day off, since COs who do not use their accrued time by the end of the quarter are paid for it in cash.

Must Make ‘Reasonable Efforts’
The arbitrator agreed with the union’s contention that the county must do everything it can to ensure that COs can use their time off. Mr. Campagna also found that “there is no logical reason” why the county should deny a CO’s request for the day off when the maximum number allowed off had not been reached.

The decision ordered the county to stop denying days off when that maximum was not reached, and to make “reasonable efforts” to ensure holidays or time off outside of a full week could be taken.

“It balances the interests involved,” Ms. Maldonado said, meaning both the county’s desire not to go below minimum staffing and the union’s desire that members can take time off.

“We’re still reviewing the decision and drafting a memorandum as to how it would be implemented,” said Justin Pine of the Westchester Department of Correction.

Mr. West said the time-off dispute was further evidence that the Correction Department “doesn’t want to honor the collective-bargaining agreement. What they can’t take away in contract negotiations, they try to litigate away or legislate away.”

Manhattan mom sues preschool for damaging 4y/o daughter’s Ivy League Chance
By Jose Martinez

March 15, 2011 – A Manhattan mom is suing a pricey preschool for dumping her “very smart” 4-year-old with tykes half her age and boring her with lessons about shapes and colors.

In court papers, Nicole Imprescia suggests York Avenue Preschool jeopardized little Lucia’s chances of getting into an elite private school or, one day, the Ivy League.

She’s demanding a refund of the $19,000 tuition and class-action status for other toddlers who weren’t properly prepped for the standardized test that can mean the difference between Dalton and – gasp! – public school.

“This is about a theft where a business advertises as one thing and is actually another,” said Mathew Paulose, a lawyer for the outraged mom.

“They’re nabbing $19,000 and making a run for it.”

Impressed by the school’s pledge to ready its young students for the ERB – a test used for admission at top private schools – Imprescia enrolled her daughter at York in 2009.

A month into this school year, she transferred the child out of the Upper East Side center because she was forced to slum with 2-year-olds.

“Indeed, the school proved not to be a school at all, but just one big playroom,” the suit says.

The court papers implied the school could have damaged Lucia’s chances of getting into a top college, citing an article that identifies preschools as the first step to “the Ivy League.”

Fortunately, Imprescia’s lawyer said, the tot’s prospects aren’t doomed.

“Lucia Imprescia, for the record, will get into an Ivy League school – York Avenue Preschool notwithstanding,” said Paulose, of the firm Koehler & Isaacs.

“The child is very smart and will do well in life.”

York’s owner, Michael Branciforte, declined comment on the suit, but his lawyer said the school has a “great reputation, which is richly deserved.”

“They’ve never had a problem like this and they only hope the child has found a school that better suits her needs,” lawyer William Wachtel said.

On its website, York touts its music and physical education programs, weekly library trips, and French classes for four-year-olds.

The York Avenue Preschool Curriculum is designed for the specific age group: “Twos, Threes or Fours,” the site boasts.

Imprescia called that a “complete fraud.”

“They put a bunch of kids of different ages together and gave her some excuse about construction,” Paulose said.

At the York Ave. campus, where many kids were being picked up by nannies pushing luxury strollers, parents were wary of speaking with a reporter yesterday, saying it could endanger their kids’ slots.

But the mother of one 3-year said she’s had nothing but good experiences.

“She’s been happy. We’ve been happy,” the mom said.

By Jose Martinez

---

March 15, 2011 – A Manhattan mom is suing a pricey preschool for dumping her “very smart” 4-year-old with tykes half her age and boring her with lessons about shapes and colors.

In court papers, Nicole Imprescia suggests York Avenue Preschool jeopardized little Lucia’s chances of getting into an elite private school or, one day, the Ivy League.

She’s demanding a refund of the $19,000 tuition and class-action status for other toddlers who weren’t properly prepped for the standardized test that can mean the difference between Dalton and – gasp! – public school.

“This is about a theft where a business advertises as one thing and is actually another,” said Mathew Paulose, a lawyer for the outraged mom.

“They’re nabbing $19,000 and making a run for it.”

Impressed by the school’s pledge to ready its young students for the ERB – a test used for admission at top private schools – Imprescia enrolled her daughter at York in 2009.

A month into this school year, she transferred the child out of the Upper East Side center because she was forced to slum with 2-year-olds.

“Indeed, the school proved not to be a school at all, but just one big playroom,” the suit says.

The court papers implied the school could have damaged Lucia’s chances of getting into a top college, citing an article that identifies preschools as the first step to “the Ivy League.”

Fortunately, Imprescia’s lawyer said, the tot’s prospects aren’t doomed.

“Lucia Imprescia, for the record, will get into an Ivy League school – York Avenue Preschool notwithstanding,” said Paulose, of the firm Koehler & Isaacs.

“The child is very smart and will do well in life.”

York’s owner, Michael Branciforte, declined comment on the suit, but his lawyer said the school has a “great reputation, which is richly deserved.”

“They’ve never had a problem like this and they only hope the child has found a school that better suits her needs,” lawyer William Wachtel said.

On its website, York touts its music and physical education programs, weekly library trips, and French classes for four-year-olds.

The York Avenue Preschool Curriculum is designed for the specific age group: “Twos, Threes or Fours,” the site boasts.

Imprescia called that a “complete fraud.”

“They put a bunch of kids of different ages together and gave her some excuse about construction,” Paulose said.

At the York Ave. campus, where many kids were being picked up by nannies pushing luxury strollers, parents were wary of speaking with a reporter yesterday, saying it could endanger their kids’ slots.

But the mother of one 3-year said she’s had nothing but good experiences.

“She’s been happy. We’ve been happy,” the mom said.

“People Starved Out”: Westchester Sanctioned For Docking Injured COs’ Pay
By Mark Toor

November 15, 2010 – The head of the Westchester Correction Officers’ Benevolent Association hopes that a recent court order will force the county to stop cutting off pay to Correction Officers who have been injured in the line of duty.

“When officers are injured, [county officials are] walking away from the provisions of the contract,” union President Alonzo West said in an interview last week. He said he hoped to sit down with attorneys for the county to discuss the way these cases should be handled.

Law Requires Pay
General Municipal Law 207-c requires that Correction Officers, along with law-enforcement and other first-responder-type workers, be paid “salary, wages, medical and hospital expenses” if they are injured in the performance of their duties until they retire or return to work. The county has the right to examine employees on 207-c leave to see whether they are healthy enough to return to work. Some of the officers contest a back-to-work order from county doctors.

Mr. West said the county pays medical expenses for members who contest the back-to-work orders, but puts them on leave without pay after their accumulated vacation and sick time—usually a maximum of five weeks—runs out.

The arbitration process takes three or more months, at the rate of two or three hearings in a three-month period, Mr. West said. With no money coming in to support their families, he said, some officers are forced to come back to work regardless of their illness or injury even as their cases are being adjudicated. “People are being starved out,” he said. “…It creates an unsafe situation. In a correctional facility, you need to be fully alert and healthy.”

“Contesting Cases Automatically”
“Westchester seems to be contesting 207-c cases automatically these days,” said Mercedes M. Maldonado, an attorney who represented a Correction Officer who recently won at arbitration. “I’ve seen cases that raise my eyebrows.”

Mr. West said that in some cases, a physician hired by the county cleared employees to go back to work but told them that in fact they should have returned to work earlier. For example, he said, an employee would be told that only two of the four weeks he or she had been on leave after an injury were justified, so the employee would be paid for only half the leave time.

The county is at fault here, he said, for dragging its feet on scheduling the medical exams. And, he said, the county improperly asked the doctor to consider how long the employee should have been out instead of just whether he or she could go back to work.

Violated Contract, Law
The court order, issued Oct. 20 by Acting State Supreme Court Justice James W. Hubert, ordered the county to immediately implement a 2009 decision by the Appellate Division that it cannot cut off pay to Correction Officers who contest a back-to-work order. By placing the officers on a “job-pending status” with no pay, the order said, “the county created a new status in violation of the collective bargaining agreement and in violation of lawful procedure.” The order prohibits the county from placing officers on job-pending status.

The order was underlined by two recent arbitration decisions restoring officers to 207-c status.

“We’ve been fighting with them over Article 20 [which covers 207-c and Workers’-Comp issues] for 2 1/2 years now,” Mr. West said.

He believes the court and arbitration fights actually make things more expensive for the county. “They’ve won a few,” he said, “but we’ve been very successful with 207-c and psychological issues.”

Westchester County responded with a statement: “Judge Hubert’s decision, and several decisions issued before it in this case, is clearly limited to four named Correction Officers, all of whom were made whole some time ago. Additionally, the department has already changed its procedures and is in full compliance with the court’s prior decisions. Despite the department having done so, the union is still attempting to reap a windfall by expanding this decision to officers that it does not apply to.”

Found Second Suicide
In one of the arbitration cases, Correction Officer Daphne Summa-Brown found an inmate after a suicide attempt in February and dressed him to go to the hospital. She was later treated at the Westchester County Medical Center emergency room for anxiety and stress disorder. She had been exposed to a suicide death in 1996 and “had a total breakdown,” according to Ms. Maldonado. She was out of work for six months.

Her psychiatrist diagnosed her after both incidents as having post-traumatic stress disorder, major depressive disorder and panic disorder. A psychologist who treated her diagnosed her with PTSD after the second incident. A psychiatrist hired by the county said she was temporarily totally disabled. A psychologist hired by the county said he could not draw a connection between her work and her mental illness.

In its argument, the county contended that “the Workers’ Compensation Board has held that inmate suicide, though uncommon, is part of the job of being a Correction Officer… the finding of such an inmate cannot be considered stress that is greater than what might be expected in the normal work environment,” according to the arbitrator’s decision.

The arbitrator found in favor of Ms. Summa-Brown, determining that the 2010 injury was an exacerbation of her 2006 injury, which was compensated under 207-c. Therefore, he said, the 2010 injury must be compensated under 207-c.

Fighting for a Paycheck
“She’d like to go back to being a Correction Officer,” Ms. Maldonado said. “When she’ll be well enough to do that we’re not sure. The condition is worsened by the stress of having to fight for your paycheck.”

In the second case, Correction Officer Robin James was injured Oct. 9, 2009, when she opened a malfunctioning dormitory door to allow a food cart through but hurt her hands in a collision with the food cart and the door. She missed seven workdays and returned to duty wearing a soft brace on her right hand.

The county claimed that her account of her injuries contained inconsistencies and that its re-enactment of the accident showed further inconsistencies. It also questioned whether her supervision of the inmates was part of her duties as a Correction Officer.

The arbitrator ruled on behalf of Ms. James, saying she was indeed performing her job duties, trying to open the door in order “to maintain proper control over the inmates,” who were becoming “agitated” and “impatient” that it was stuck. His own observation of the scene, he wrote, made Ms. James’ account of the injuries plausible.

Her attorneys noted that “incredibly, the county disputed Officer James’ version of the events…and even threatened her with disciplinary charges after bringing her in for an investigatory interview.”

DOT Bridge-Painting Unit Found Guilty Of Bias Against Women
By Ari Paul

May 21, 2010 – Women were ranked arbitrarily. A Federal Judge in Manhattan ruled May 13 that the city wrongfully refused to hire female Bridge Painters at the Department of Transportation “in spite of societal norms, sound business practice, and city, state and Federal law.”

U.S. District Judge William Pauley III found that since October 1997 the DOT filled 13 provisional job openings with male candidates despite that fact that equally and more-qualified females also applied. Four women who intervened in the case will be granted relief, but the Judge has yet to grant their appointment to the title.

Judge Pauley noted that there was little statistical evidence showing discrimination other than “the elephant in the room—the incontrovertible fact that DOT has never hired a provisional female Bridge Painter,” and that “Regardless of the weight given to the total absence of female hires, the remaining anecdotal evidence was more than sufficient to show that DOT lacked consistent hiring standards in the bridge Painter section, that less qualified men were given preferences over more qualified women, and that the disparate treatment was intentional appeasement of DOT’s existing all-male workforce.”

A Law Department attorney said the city would consider appealing the case.

Subjective Testing
Howard Wien, a Koehler and Isaacs attorney for the female interveners, said that Judge Pauley saw that the DOT had poor record-keeping and that the hiring process consisted of only one manager testing and ranking candidates.

“He ranked them arbitrarily,” Mr. Wien said. “There was no climbing test, and 90 percent of the job is climbing bridges. And they took men who had never climbed.”

The case also outlined what Mr. Wien called a hostile work environment for women, where the Bridge Painters displayed lewd and sexist posters in their lockers.

Mr. Wien also noted the female interveners had the backing of International Union Painters and Allied Trades Local 806, in sharp contrast to the stereotype that building trades unions are sexist.

“In this case you really saw a construction industry union go to bat for the women,” he said. “I think the union should get credit for that.”

By Sunil Joshi

March 25, 2010 – Albert Garcia was manning the grill at a McDonald’s in the Bronx late one night when Officer John Florio of the New York Police Department bought a Big Mac in the drive-through. The next day, Garcia was arrested, with Florio alleging that Garcia, then 18 years old, put ground-up shards of glass in the sandwich. Florio claimed that one bite of the sandwich left him with a chipped tooth and cuts in both his mouth and throat.

Five years later, on Tuesday, Garcia was cleared by a Bronx Supreme Court jury of all charges, including a felony count of attempting to assault a police officer. Garcia&rsquos attorney, Raymond Aab, called the case, “one lie after another, an outrage.” Garcia, now 23, expressed relief in a press conference on Thursday.

“People from my neighborhood who didn’t know would come up to me and say, ‘Oh, look, that’s him, that’s burger boy,’ ” Garcia said. “It was hard for me to get a job. I have a son, so it was hard for me to support him, to get work. This was on my back. This was in my way of living my life.”

Garcia was working at the McDonald’s at 875 Garrison Ave. in the Bronx on January 29, 2005, when Florio, a 20-year-veteran of the police department and a member of the city’s K-9 unit, purchased a Big Mac. After eating part of the hamburger, Florio complained to his supervising officer that glass had been put in the hamburger. Officers from the 41st Precinct were then dispatched to the restaurant to investigate.

There, they arrested Garcia, taking him back to the police station, where he claims that he was interrogated for hours and was the subject of verbal and physical coercion by the officers. He maintains that as a result of the harsh treatment, he gave a false confession in writing and on videotape.

“I felt trapped, really confused. I really didn’t know what was going on,” said Garcia, who told police officers that no glass was in the hamburger. He added that police officers “kept putting so much pressure on me, so much pressure. I was scared. I was crying. I didn’t know what to do, so I kind of gave up, and I gave them what they wanted to hear.”

He added, “They really treated me like a dog.”

In Garcia’s confession, which he later recanted, he admitted to smashing a picture frame, grinding the shards of glass and putting them in the hamburger. The Bronx district attorney’s office began prosecuting Garcia soon after his arrest. “There’s nothing in the statements and in the video that shows physical or psychological coercion,” said Gary Weil, the prosecuting attorney. Calls to the 41st Precinct were not answered. By Friday afternoon the NYPD’s Deputy Commissioner of Public Information had not responded to a request for comment.

However, forensic analysis of the glass, which was revealed in court, indicated that it was rounded and its thickness was inconsistent with that of a picture frame. Expert testimony indicated that the shards were consistent with “ubiquitous container glass.” Investigators also compared DNA evidence from both Garcia and Florio to a hair that was found on the sandwich; neither returned as a match. The jury took 40 minutes to return a not guilty verdict.

Aab said he believes that Florio made up the story in order to sue McDonald’s. “The fact is the cop made the whole thing up to get a pay day,” said Aab. “Within a couple days, he sued McDonald’s, and that speaks for itself.”

Florio was unavailable for comment, but his attorney, Richard Kenny, strongly disputed that claim. “The allegation that this is feigned is utterly ludicrous,” Kenny said.

Aab and Garcia said that they are considering filing a countersuit, but until then, Garcia said that he’s looking forward to spending more time with his 4-year-old son and enjoying a life without looming court dates.

“Now that this is over, now I can live my life,” he said.

Cop Lied to Detectives, the DA and the Court in Order to Collect a $6,000,000 Pay Day from McDonald’s

New York, New York March 25, 2010 – At a press conference held at noon today Raymond Aab, who is of counsel to Isaacs, Devasia, Castro & Wien LLP announced that in a major decision, a New York State Supreme Court Jury delivered a not guilty verdict on behalf of Albert Garcia, a former McDonald’s employee who was falsely arrested on January 29, 2005 and accused of giving former police officer, John Florio, a McDonald’s hamburger with glass in it. Garcia, who was 18 at the time, had been held in custody for several weeks and charged with assault, reckless endangerment and weapons possession. In a separate civil case, Florio sued McDonald’s in order to get a $6,000,000 “pay day.”

However, according to court documents and the facts presented during the trial, the evidence overwhelmingly showed that Florio made the whole incident up, lying to his doctor and police detectives that he received a glass-laced McDonald’s hamburger from Albert Garcia and the detectives investing his case helped to bolster Florio’s false case because they were seeking to help a fellow officer whom they believed had been given the glass laced hamburger.

“I’m very pleased that the jury has delivered justice and given my client his life and good name back after five years of living with the fear of being convicted and sentenced to jail for something he never did and which never happened,” said Mr. Garcia’s attorney, Raymond Aab, who is of counsel to Isaacs, Devasia, Castro & Wien LLP. “No one should ever have to be subjected to such egregious acts of police misconduct. The conduct of the three police officers involved in this case tarnished the good name and reputation of the other fine, hard-working and ethical police officers in this city. It’s a shame.”