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Inmate Should Not Have Been Required to Document His Native American Ancestry In Order to Practice His Religion

In annulling a determination by the Central Office Review Committee (CORC) that the petitioner (an inmate) must document his Native American ancestry before he will be allowed to practice his religion, the Third Department wrote:

It has been recognized that correction officials may impose restrictions on the religious practices of inmates provided that such restrictions are reasonably related to legitimate penological interests … .Respondents candidly concede, and we agree, that CORC failed to articulate or otherwise identify any legitimate penological interest reasonably served by the documentation requirement. Consequently, we conclude that the determinations at issue are arbitrary, capricious and  without a rational basis… .  Matter of Santiago, 514317, 3rd Dept, 4-18-13

 

 

 

Reasons for Refusal of Temporary Job Not Sufficient; Claimant Disqualified

The Third Department upheld the disqualification of an unemployment-insurance claimant who refused a temporary job offer because the pay was lower than at his previous temporary job and a 20-mile commute was required:

“A claimant who  refuses to accept a job for which  he  or she is reasonably suited by  training and  experience will be  disqualified from receiving unemployment  insurance benefits” ….   Here, the record confirms that claimant was  qualified for the job offered to him  and  the position paid the prevailing wage ….   As for claimant’s rejection of the job offer due  to its location, “dissatisfaction with the length of one’s commute does not constitute good cause for rejecting an otherwise  suitable  offer of  employment”  … Notably, claimant admitted receiving the unemployment  insurance handbook explaining his obligations regarding reasonable commuting  distances under these circumstances.  Matter of Neuman, 509590, 3rd Dept, 4-18-13

 

 

Claimant, Who Had Been Diagnosed With Job-Related Stress, Did Not Have Good Cause to Resign

After a doctor diagnosed claimant with job-related stress and authorized a month’s leave from work, claimant resigned from his job.  The Third Department affirmed the Unemployment Insurance Appeal Board’s finding claimant was not eligible for unemployment insurance on the ground he left his employment without good cause:

It is well settled that general dissatisfaction with a job or the inability to get along with a supervisor does not constitute good cause for leaving one’s employment … .   Here, claimant expressed extreme displeasure with his work environment as well as the demeanor of his supervisor, which undoubtedly contributed to the stress he was experiencing. While his physician provided him with a note setting forth medical reasons justifying a  leave of  absence,  claimant  did  not receive medical advice to quit his job … .   Moreover, although claimant  cited safety concerns  as another  reason  for his leaving, his supervisor testified that he  accepted  claimant’s suggestions concerning  the  operation  of the  machinery  and  did  not  have  him engage in potentially dangerous work practices. Matter of Bielak v Commissioner of Labor, 514536, 3rd Dept, 4-18-13

 

Claimant’s Failure to Give Timely Written Notice of Injury Excused

In finding claimant’s failure to give timely written notice of her injury to her employer was excused, the Third Department wrote:

While claimant did not give timely written notice of her injury, her failure to do so may be excused “on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced” (…see Workers’ Compensation Law § 18). Claimant testified that she verbally informed  the bus  dispatcher of the accident shortly after it occurred, and the employer’s employee benefits supervisor confirmed that the dispatcher would be an appropriate individual to whom  to report an accident if claimant’s  supervisor  was  unavailable. Claimant  also  testified that she orally notified her supervisor of the accident – perhaps the following day … .  Matter of Rankin v Half Hollow Hills Central School District, et al, 514956, Third Dept 4-18-13

 

Failure to Record Testimony Relied Upon by Hearing Officer Required Annulment

The failure to record testimony which was relied upon by the hearing officer in a disciplinary determination required annulment.  Matter of Tolliver v Fischer, 514866, 3rd Dept, 4-18-13

 

Failure to Make Sufficient Effort to Transport Injured Inmate to His Hearing Required Annulment

In annulling a disciplinary determination, the Third Department ruled the inmate’s statement to the escort officer that he had injured his foot and could not put on a shoe (to walk to the disciplinary hearing) did not constitute a refusal to attend the hearing:

“[A]n inmate has a fundamental right to be present at his or her disciplinary hearing, unless he or she waives such right or refuses to attend”  …. Here, instead of “transporting petitioner to the hearing by  wheelchair, stretcher or other appropriate conveyance  or arranging to have medical personnel examine petitioner or otherwise developing a record on the issue of petitioner’s physical ability to walk” … – or even exploring the possibility of allowing petitioner to leave his SHU cell with only one shoe – the Hearing Officer summarily accepted the  escort  officer’s characterization of  petitioner’s conduct  as a blatant refusal to attend the hearing … .Under these circumstances, the record does not support the finding that petitioner “willfully refused”… .  Matter of Brooks v James, 514707, 3rd Dept, 4-18-13

 

Failure to Make Sufficient Effort to Have Inmate’s Witness Testify Required a New Hearing

The Third Department ordered a new disciplinary hearing where insufficient efforts were made to procure the testimony of a witness requested by the inmate:

When  petitioner requested that a fellow inmate  testify at the  disciplinary  hearing,  the Hearing  Officer merely  noted  that the witness had informed petitioner’s employee assistant that he refused  to  testify. Such a notation by the Hearing Officer, without any attempt to determine the reason for the witness’s refusal, is not a sufficient basis upon which to deny petitioner’s right to call the witness … Matter of Dickerson v Fischer, 514685, 3rd Dept, 4-18-13

 

 

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Termination of Deputy Sheriff by Sheriff after Hearing Officer Recommended Suspension Upheld

In up holding the termination of petitioner, a deputy sheriff correction officer, after a disciplinary hearing officer recommended only suspension, the Third Department wrote:

Here, petitioner was found to have caused an injury to a defenseless, handcuffed inmate over whose custody petitioner was in charge. The Sheriff noted that his decision to terminate petitioner’s employment was based, in large measure, upon the fact that, as a correction officer, petitioner was required to handle the most difficult and sometimes dangerous individuals and that “[d]isrespect and brutality of prisoners cannot and will not be tolerated.” Even if there is mitigating evidence that could support a different result –  such  as petitioner’s otherwise unblemished record of service during his 10 years as a correction officer – we may not substitute our judgment for that of the Sheriff ….Considering petitioner’s position as a correction officer and a Sheriff’s Emergency Response Team member and the serious nature of petitioner’s misconduct – an assault of a handcuffed inmate who petitioner was supervising at the time – as well as petitioner’s failure to take responsibility for his actions, the decision to terminate his employment  does not shock our sense of fairness … .  Matter of Knox v VanBlarcum…, 515471, 3rd Dept, 4-11-13

 

 

“Out-of-Title” Work Did Not Warrant Higher Pay

Petitioner was a sergeant at Butler Alcohol and Substance Abuse Correctional Facility and he alleged he was assigned as shift supervisor, requiring him to perform the work of a correction lieutenant.  In upholding a determination that petitioner’s “out-of-title” work did not entitle him to more pay, the Third Department noted:

While Civil Service Law § 61 (2) seemingly provides an “unqualified prohibition against nonemergency out-of-title work,1 case law has made the standard somewhat more flexible based on practicality” ….   “Not all additional duties constitute out-of-title work but, instead, the question is whether the new duties are appropriate to petitioner[‘s] title[] and/or  are similar in nature to, or a reasonable outgrowth of, the duties listed in petitioner[‘s] job specifications” … . “‘[A]n employee’s performance of overlapping functions of an absent supervisor has not been found to establish a violation of Civil Service Law § 61 (2) where such functions were substantially similar to those detailed in his or her job description'” … .  Matter of New York State Correctional Officers … v Governor’s Office of Employee Relations, et al, 515409, 515410, 3rd Dept, 4-11-13

 

 

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Late Notice of Settlement of Negligence Action to Workers’ Compensation Carrier Did Not Preclude Court-Approval of Settlement Pursuant to Workers’ Compensation Law

Plaintiff was struck by a car driven by defendant while she was taking a walk during a layover between work assignments for her employer.  She filed for workers’ compensation benefits.  And she sued the driver in a negligence action.  While the workers’ compensation proceeding was progressing plaintiff settled with the driver’s carrier.  Upon notice to the employer’s workers’ compensation carrier, the carrier refused to approve the settlement. Plaintiff then moved for court-approval of the settlement pursuant to the Workers’ Compensation Law.  Supreme Court granted the motion and the Third Department affirmed, noting:

When,  as here, court approval of a  settlement is not sought within three months of the date of settlement, a  plaintiff seeking a nunc pro tunc order must establish the reasonableness of the settlement, the lack of any  fault or neglect in applying for approval and the lack of any prejudice to the carrier … .   These determinations are directed to the discretion of the court … . Lindberg, et al, v Ross, et al, 515373, 3rd Dept 4-11-13

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