By Ron Leir
Four former Kearny workers, including a union chief, have lost the first round of a bid to reverse their New Year’s Eve dismissals nearly three years ago.
In a 21-page ruling issued Sept. 3, the state Office of Administrative Law Judge Irene Jones dismissed an appeal by Kerry Kosick, Elizabeth Wainman, Mary Ann Ryan and Fatima Fowlkes, contesting their “economic” layoffs that took effect Dec. 31, 2011.
Ryan, president of Council 11, Civil Service Association, which represents most of the town’s civilian employees and crossing guards, said the judge’s decision has been appealed to the state Civil Service Commission, which must affirm or reject the ruling.
The town characterized the layoffs as a reduction in force prompted by reasons of “economy and efficiency” but the employees countered that the town acted in bad faith because the employees were let go, not for anything budget-related, but rather, in retaliation for complaints made against superiors.
Hearings were held in the OAL court in Newark Sept. 28 and Oct. 31, 2013, with attorney Paul Kleinbaum representing the employees and special counsel Jonathan Cohen appearing for the town.
Kosick, a senior librarian who earned $71,000, testified that she was targeted for a layoff in connection with a 2010 incident for not allowing a contracted artist to do portraits of two local politicians’ kids at a library program because the politicos arrived with only five minutes left in the program. Kosick said she was bawled out by her thenboss but acknowledged she wasn’t disciplined. She said that after she was let go, the town hired a part-time librarian in violation of its hiring freeze policy.
However, the court found that Kosick had no proof that she’d been targeted for a layoff and that the town had hired only “low-level” employees — not librarians – to handle some of her work.
Wainman, a clerk for the Construction Code Department who earned more than $55,000, claimed that she was targeted for a layoff after she filed a harassment complaint in 2010 for being told to bring a doctor’s note after being out sick for less than three days, for being told to leave and docked a half sick day after arriving to work 19 minutes late and for being yelled at by a supervisor to “get that baby out of there” while she was assisting a customer with a crying infant. After filing a verbal complaint, Wainman said she was branded a “pot stirrer” by the town’s personnel officer.
Again, the court found that no bad faith in Wainman’s case, noting that the harassment complaint was made “after the layoff plan for 2011 was formulated.” The court noted that it was Wainman’s choice not to apply for the position of permit clerk – which would have insulated her from the layoff – nor did she want to “bump” another employee who is the mother of three children.
Fowlkes, a $54,000 clerk typist bilingual in the Public Works Department, testified that in 2011, she filed a racial discrimination complaint with the Equal Opportunity Commission, based on allegations of a hostile work environment, including the placement of a big black rubber rat on her work desk and an order by her boss to get out of his office. She said that Town Administrator Michael Martello found no evidence of racial discrimination or a hostile work environment but that everyone in the Public Works Department had to take a class on racial harassment. Subsequently, she got a new job at the Passaic Valley Sewerage Commission in Newark.
The court concluded that no bad faith had been demonstrated against Fowlkes, noting that the EEOC had investigated – and dismissed – her claim of racial discrimination. It also found that Fowlkes had three years’ less seniority than a second bilingual clerk in the Public Works Department.
Ryan, a $75,000 principal clerk typist in the Fire Department who worked there 28 years for six different fire chiefs, testified that she was targeted for layoff because of her union activism. She said that the town originally sought $785,000 in concessions from Council 11 but then upped that amount to $870,000. Also, she said, the town initially wanted 26 furlough days but then offered to take 20 days – and later, 13 days – if she retired.
The court found “no merit” to Ryan’s claim of retaliation due to her union activities. Instead, it concluded, “the record supports that the town and unions worked together to avoid layoffs in the prior year and to reduce the overall number of layoffs by agreeing to furlough days and other concessions.”
Ryan retired April 1, 2013, and began collecting pension benefits.
Mayor Alberto Santos said last week that he expected to begin negotiations with Council 11 on a new labor contract by the end of October or early November. The union currently represents about 55 civilian employees and 25 crossing guards.