Scold ACS For Violating Rights Of Caseworker; BCB Deems Firing Was Retaliation For Grievance

By RICHARD STEIER

The Administration for Children's Services improperly retaliated against an employee for utilizing his union rights by firing him, using trumped-up charges to support its case, the Board of Collective Bargaining ruled earlier this month.

The Chief-Leader/Pat Arnow V AS IN VINDICATED: Ralph Vanacore, who the Board of Collective Bargaining concluded was a victim of retaliation by the Administration for Children's Services when he was fired on dubious charges and kept from working even after an arbitrator ordered him reinstated, said he was "extremely gratified" to have been awarded back pay of more than $200,000. Noting that the punishments came because he contested earlier attempts to discipline him, he said, 'I think if you're an honest employee and you have integrity, it's almost like you rise to the status of a whistleblower' in the agency's eyes.

Ralph Vanacore, a 17-year Caseworker who is represented by Social Services Employees Local 371 of District Council 37, may have been a "nuisance," as an arbitrator involved in the case characterized him, the BCB majority stated in its decision.

JOHN B. MATTINGLY: Agency railroaded staffer.

A Six-Year Vendetta

But the conduct that originally got him in trouble was a minor transgression, and when he contested the penalty imposed, ACS officials responded with nearly six years of retaliatory actions spanning two mayoral administrations, the BCB concluded.

"We find that ACS retaliated and discriminated against Vanacore because ACS's decisions to suspend and terminate Vanacore were causally connected to Vanacore's protected activity," five members of the BCB stated in the decision, with the two mayoral appointees to the panel dissenting. "We also find that ACS interfered with the rights of its employees and breached its duty to bargain in good faith when it refused to reinstate Vanacore despite an arbitrator's award ordering reinstatement."

"I am extremely gratified" by the decision, Mr. Vanacore said Dec. 19 from his office at ACS's Child Care Head Start program. "They truly made life very difficult for me. They hated me so much they chose to have me sit at home and get paid for six years for doing nothing. They demonized me to such an extent that I wasn't even able to get a job as a bagger at Stop 'n Shop."

FAYE MOORE: 'A big victory.'

Twisting the Knife

He said that after ACS failed to carry out an arbitrator's order in 2004 to reinstate him, he suffered a heart attack. He claimed that when ACS learned he had been hospitalized, it discontinued his health benefits.

Faye Moore, Local 371's vice president for grievances, said Dec. 19, "This victory is much bigger than Mr. Vanacore. This case illustrates the abuse of the disciplinary process and collective-bargaining process that exists not only in ACS but in other city agencies."

An ACS spokeswoman limited her response to saying, "The BCB has made its decision and we will abide by it."

Started With 7-Day Rap

In the spring of 1999, Mr. Vanacore was notified that he had been indefinitely suspended without pay, allegedly for being discourteous to a supervisor and then following the supervisor to an off-site location. An ACS hearing officer several months later substantiated the charges and recommended a seven-day suspension.

Mr. Vanacore appealed the ruling and got it reduced to a four-day suspension, which he also appealed. City officials claimed that he was allowed to return to work in December 1999, but Local 371 alleged that he was told "to sit home" and receive his full salary minus the deduction of four days' pay.

Mr. Vanacore asserted that he was still at home and on salary when he was hit with a new set of charges in February 2001 claiming that for the previous 14 months he had failed to perform his duties or follow orders from his supervisor, used inappropriate language toward a supervisor, and slept while on duty. An in-house hearing on those charges was held in April. They were substantiated, and the penalty recommended this time was firing. After a further appeal, his firing took effect on Oct. 26, 2001.

Reinstatement Wasn't

Local 371 subsequently sought arbitration in the case, and after a series of delays, on June 7, 2004 the two sides agreed that Mr. Vanacore would be reinstated to the ACS payroll pending the outcome of that case. ACS did not, however, reinstate him.

Six weeks later, the BCB decision noted, "The arbitrator found that ACS failed to prove most of its allegations against Vanacore, that it had failed to perform progressive discipline, and that it failed to communicate to Vanacore proper performance and behavioral standards required at ACS."

The arbitrator, according to the BCB ruling, found that Mr. Vanacore "was difficult to supervise and did not interact well with clients." But no evidence was found that he had threatened or struck co-workers, supervisors or clients, and the arbitrator ordered him reinstated with back pay and benefits except for a three-month period that he said would stand as a disciplinary suspension. By that point, according to Mr. Vanacore, he had not been working at ACS for more than five years and had been off the payroll for 33 months.

Charges 3 Years Late

Rather than complying with the reinstatement order, however, less than a month later ACS brought a new set of charges against Mr. Vanacore alleging that during a three-week period in the fall of 2001, he had been repeatedly abusive toward a supervisor. ACS claimed it didn't issue those charges until nearly three years after the alleged incidents because of chaos in the agency in the aftermath of 9/11 and because it had lacked jurisdiction over Mr. Vanacore after he was removed from the agency payroll in October of that year.

Those charges were accompanied by a 30-day suspension; once they were substantiated, ACS Commissioner John B. Mattingly sent Mr. Vanacore a letter notifying him that he had been fired for the second time.

Mr. Vanacore took this case to Manhattan Supreme Court, where in February 2005 a justice confirmed the July 2004 arbitrator's decision and ordered that he be reinstated. Less than a week later, an ACS hearing officer once again ruled that he should be fired based on the charges brought against him the previous summer.

Only a Nuisance

In May 2005, another arbitration hearing was held. The hearing officer concluded in late August of that year that Mr. Vanacore was "a nuisance" and had pestered his supervisor, but that ACS had falsely accused him of trying to strike or intimidate the supervisor. She ruled that the previous penalties against Mr. Vanacore should be entirely scrapped, with a written reprimand and a five-day suspension substituted.

Four weeks later, ACS returned Mr. Vanacore to work. Local 371 brought the case to the BCB, alleging that ACS violated the city's Collective Bargaining Law by retaliating against Mr. Vanacore for exercising his right to challenge disciplinary actions against him. It also accused ACS of breaching its duty to bargain in good faith by manufacturing charges against him rather than complying with the July 2004 arbitration order that reinstated him, saying that violated the contractual provision that arbitration awards were binding on both sides.

City: Can't Prove It

City officials claimed that there was no proof that the disciplinary actions ACS took against Mr. Vanacore were in retaliation for his appeals and grievances, noting that other agency employees who had won disciplinary cases were not targeted in such a fashion. It stated that ACS had "never brought meritless cases," and that the actions taken were prompted solely by Mr. Vanacore's improper behavior and failure to perform his job.

The BCB majority rejected the city's contentions, noting that on two separate occasions in 2004 following the arbitrator's ruling to reinstate Mr. Vanacore, new charges were brought against him for infractions he allegedly committed three years earlier.

"This repeated, suspicious, temporal proximity between successful resort to the grievance process swiftly followed by adverse employment action by the employer is consistent with other facts supporting a finding of retaliation," the BCB majority stated.

Bad Faith, 'Anti-Union'

It concluded that ACS showed bad faith when it failed to reinstate Mr. Vanacore, as it had agreed to do while the 2004 arbitration case proceeded.

The BCB's rebuke of ACS continued: "Additionally, we find that ACS relied on dubious evidence and stale charges by ACS to rid itself of this employee, as well as engaging in disingenuous behavior surrounding the stipulation. These facts suffice, taken as a whole, to establish a prima facie case that ACS acted with anti-union animus."

The ruling went on to upbraid ACS officials for offering "shifting and inconsistent rationales" for its actions against Mr. Vanacore.

Plans to Sue

Mr. Vanacore, a Local 371 delegate who said he will receive more than $200,000 in back pay as a result of the reinstatement, plans to retain a lawyer and sue ACS. "They made my life miserable," he explained.

Ms. Moore said she hoped the stinging decision would have a broader impact on how ACS treats employees. "Over the last year, we have been working with ACS to review the disciplinary process, and I hope this ruling leads them to focus on it and deal with employees in similar situations reasonably, rather than just put them through something like this."

Regarding Mr. Vanacore, she said, "We can't give him back the humiliation and the lost time and the grind of going through all this, but we were able to get him some justice."