Preview
FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021
Received on
Local 1000 AFSCME, AFL-CIO
GRIEVANCE FORM
CSEALocal859-9100-02
WayneCounty Wayne County
Employees
onbehalfof AndrewDeWolf . 19r200
Name: ______________________________------ Date of Hire. May ___________----------
Address· 7 Sisson Street . 1236085381
Home Member ID. _____________________
Lyons, New York 14489
Department/Agency:
E911 WCALS
---------- ---------------------- ____________
_C-CInic all
Home Phone: _Î_--1-1_Î_5------------ Job Title:- __
Jim Lee
Name of Supervisor: ______________________________________ ______________ ______
STEP 1
__tices 23 an all other applicable articles
Contract Articles violated or involved: _
see attached
______________________________________________________________ _________________________
_____________________________________ .____________ ________ ________________
------_______-------------------------__----------------------- .__
--------------------------------------------------------------------------------------------------
__________________________________________________________________________________________________
-_________---__________________________________ .________________________________________
_____________________________________ ______________________________________________________
__________________________________________________________________________________________________
________________________________________________________________________________________________--
____________________ .----___________________________________ ________
_________________________ _________________________________________________________ ._____
__________________________________________________________________________________ ________
__________________________________________________________________________________________________
____________________________________________________________________ _____________
see attached
Remedy Sought: _______________________________________________________________
__________________________________________________________________________
_____--______________---_____________________________ _______________________
_____________________________________________________________________ _____________________
______________-__________________________________________________________________________________
Date Submitted: _Grievant's Signature: ____
FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021
1" STEP DECISION
Date: _________________________ Supervisor's Signature: ______ __________________
Rejected: ____ ._________________ Sustained: _________________________
Decision (use addjdeml sheets if
necessary):___________________________________ __________
______________________ -_______-----______________________________----
___________________________________________________________________ __________----------
_____________________-----________ _________________ ____
___________________________---------______------------- .__________
________________________________________________________________________ -------______---
_______________________________ _______--- ----------------
Date decision receive
by Grievant:
____f _f_f ____ Grievant's Signature: ___2__d____ _ __ _
The above Decision is satisfactory:_______ ________________________________
I wish to appeal the above-decisio o): _________________________
STEP 2
Determination Attached
Date decision issued: _________ Reviewer's Signature: _______________ ___
The above-decision is satisfactory: ____________________________________________
I wish to appeal the above-decision (yes or no):______________________________
STEP 3
Determination Attached
Date decision issued: ___ Reviewer's Sigliatuit:.
__________________________
The above-decision is satisfactory: _____________________ _________________
I wish to appeal the above-decision (yes or no): ______________,._____________ __
Date: ____________________ Grievant's Signature: ___________________________
Copies to:
Original to Employer
Employee
Local President
Unit President
Labor Relations Specialist
Forms2010/kim
FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021
DeWolf, Andrew July3, 2021 C5EA Local 859 Discharge/TerminationGrievance
NOTICE OF GRIEVANCE
and Discharge - Failed to remediate
Incompetence, Suspension,
Grievance ID# 2021-
Wayne County Advanced Life Support Services July 3, 2021
Department Head George Bastedo
7376 Route 31, Suite 2100
Lyons, NY 14489
Grievant: CSEA Member Local 859 since 2008
CSEA Unit #9100-02
Andrew DeWolf Date of Hire: 2003 part time.
7 Sisson Street Date of Hire: 2008 full time.
Lyons, NY 14489
(315)-398-1195
dewolfap@hotmail.com & adewolf@co.wayne.ny.us
Department: Wayne County Emergency Management
Division: Wayne County ALS
Job Title: ALS Technician- 101
Policy
Supervisors: Department Head George Bastedo, WCALS Director James Lee, WCALS Medical
Director James I Syrett, Chief Paramedic Eric Dierks.
Contract Articles, Laws, Regulations involved:
Wayne County and CSEA Contract Jan 1, 2019-December 31, 2023:
• Article 4 - Annual Leave
• Article 9 - Sick Leave
• Article 23 - Grievance Procedure
NYS Labor Law
NYS Civil Service Law §75-b
NYS Taylor Law §209a
NYS Administrative Procedures Act Articles #1-5
NYS Public Health Law §12, §l2a, §16, §206, Article 30, Article 30a-c.
NYS Public Officers Law §2, §3
NYS Civil Practice Law and Rules Article 75, §7511
NYS Civil Practice Law and Rules Article 78
Title 10 NYCRR Part 800
NYS Department of Health Bureau of EMS Policies #s 95-03, 98-09, 06-01, 08-03, 11-03,
11-05, 12-02, 12-03, 12-04, 14-01.
NYS Constitution - Equal Treatment and guarantee of due process.
5* 14*
United States Constitution and Amendmats
42 USC 1983
4 NYCRR 1.2
4 NYCRR 35.1
Any and all others that may apply
1 | P a g e
FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021
De Wolf, Andrew J uly3, 2021 CSEA Local 859 Discharge/Termination Grievance
Dates of occurrence:
1. On or about April 26, 2018 through 2, 2021 - Wayne retaliated via multiple
July County
methods for at least eleven (11) to fifteen (15) or more Civil Service Law §75-b protected
activities and Taylor Law §209a/CBA Article 23 protected activities. This retaliation
included social and profeuianal exclusions, extra and special targeted Quality Assurance
and Management Scrutiny, denials of bid and leave, harassment, disciplinary actions,
assignments/reassignments, performance appraisal changes and performance evaluation
changes, and a failure to remediate and reinstaternent, charges of misconduct with
discipline, charges of incompetence with discipline of termination, and for thefirst time
in Wayne County history two formal NYS DOH-5245 formal complaints to NYS DOH
that were never done to anyone else.
a. Wayne County actively refused to help me remediate this time, but on November
27, 2013, Director James Lee affirmed in writing they would assist me in any way
possible with retraining and assisting and modifying the patient eare decision
process that 1 follow. Wayne County actively assisted me in a complete
remediation and return to service in 2013, will not do so this time.
b. I have knowledge and belief that Wayne County allowed and actively also helped
in a similar manner former ALS Tech Kim Hammond and Jonathan Sirkin to
remediate with Wayne County ALS and believe additional cases exist which will
show pretextual retaliatory improper motives and disparate treatment, selective
enforcement
c. Thus, the failure and refusals to modify my remediation plan violate Wayne
County ALS past practices, show disparate treatment, and are done with improper
motives, violate just cause and contract, as well as laws and state and federal
constitutions.
d. The motivations of Dr. James I Syrett enacting the suspensions and the impossible
NYS DOH EMS Policy 14-01 remediation plans must be raised, material
evidence of disparate treatment considered along with prima facie evidence of
threats, and must be ruled on per statutes Civil Service Law §75-b and Taylor
Law §209a, as well as CBA Article 23.
2 | P a g e
FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021
DeWolf, Andrew July 3, 2021 CSEA Local 859 Discharge/Termination Grievance
e. Wayne County treated me versus the ALS Techs: Brandon
disparately following
Howard, Frank Adams, Joan Stark, Bill Colburn, Eric Burns, Eric Dierks, Charles
Drollette, Adam Elsbree, Jason Haag, Eldred Schell, Keith Simon, James Lee,
Nick Lowry, Jonathan Sirkin, De Luca, Kim Hammond, Michael Harris,
Anthony
Jim Hagelin, Jeremy Oakley, Patricia Pierson Simon, Robert Breese, Kayla
Macdonald, Matthew Wadsworth, Keith Geldof, Tyler Hares, Dave Beachel,
Evan Fendt, Jay Pelton, and others that will be raised.
2. On or about November 30, 2013, through July 2, 2021 Wayne County retaliated via
multiple methods for union protected activities, violating CBA Article 23 and Taylor
Law §209a. This included a failure to remediate and reinstatement.
3. From 2010 through July 2, 2021, Wayne applied selective enforcement and
County
disparate treatment for how itenforced it'spolicies and protocols, clinically suspended
ALS Techs, remediated ALS Techs, and reinstated ALS Techs.
4. From 2010 through July 24 2021, Wayne applied selective enforcement and
County
disparate treatment in how ithandled formal complaints and referrals to Pinger Lakes
REMAC/REMSCO, NYS SEMAC/SEMSCO, and NYS Department of Health, including
via DOH-5245 written complaints.
5. April 2019, Notice of Discipline - Selective enforcement of misconduct-
10,
insubordination and disparate treatment.
6. June 24, 2019, NYS DOH EMS Policy 14-01 suspension with pay, remediation ordered.
7. September 5, 2019, Notice of Discipline -Incompetence, Suspension without Pay,
Termination as penalty. Selective enforcement of protocol violations and disparate
treatment in how protocol violatinrm were dealt remediated, and reinstated.
with,
8. February 18, 2020, NYS DOH EMS Policy 14-01 remediation plan modified.
9. December 2020 through 2021 - Reassigned to Health Services
July 2, Building doing
COVID Screenings instead of helping me with remediation. No other ALS Tech ever
forcibly reassigned and forced to do COVID Screenings instead of remediating so I can
be reinstated.
10. June through 2021 - Wayne refused to allow me to remediate at
24, 2019, July 2, County
Wayne County, failed to assist me with remediation in any rñaññct. However, Wayne
County allowed at least one other ALS Tech to also be suspended from elinical duties by
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FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021
DeWolf, Andrew July 3, 2021 CSEA Local 859 Discharge/Termination Grievance
the Medical Director and allowed that ALS Tech to remediate with Wayne County ALS
and return to service. Disparate treatment and selective enforcement.
Grievances/IP's/Chggg
l. On July 2, 2021, between 8:58am and 10:12pm I entered an oral grievance to WCALS
Director James Lee, Attorney Dan Connors, HR Chris Kalinski, and CSEA LRS Karen
Spotford. It was acknowledged arid affirmed a written one would timely follow.
2. WCALS violated CBA Article 4 - On June 12, I was preapproved in to
2021, writing
take/use my regular leave for three days totaling 24 hours of leave. Thus, I am entitled to
stillbe paid for that leave. On July 2,2021, 1 was orally noticed I was terminated and
could not use up my holiday leave or remaining Article 4 regular leave. The corttract
does not clearly and unequivocally as reqttired by Labor Law §195 that I forfeit all my
leave of every kind upon termination, thus under CBA Article 4 and Labor Law I am
entitled to the remainder of my unused holiday and regular leave.
3, WCALS violated CBA Article 9 - sick leave was earned and should be
My remaining
credited/paid out to me.
4. WCALS violated CBA Article 23 in multiple ways and means:
a. Violated Article 23 §1 by harassing, interfering, and retaliating against me for
filing grievances. WCALS failed to help me remediate and failed to reinstate me
as a result of filing grievances (See Dr. James I Syrett's promises he would do
this on or about December 21, 2018, December 28, 2018, January 11, 2019,
January 25,.2019, February 26, 2019, May 16, 2019.
b. Violated Article 23 §6 & CPLR §7511 -
i. Agreed to reopen the arbitration in violation of clear unequivocal terms
that the arbitration decision is fmal and binding.
ii. There was no end date given as to when 1 must rentediate by, and under
CPLR §7511 a clear and definite final award was not rendered.
iii. Thus, there is NO deadline by me toremediate by and I cannot be
terminated for failure to remediate unless Wayne County tried to
remediate me themselves and I failed.
iv. Wayne County falsely informed the arbitrator that the MRB decision of
August 12, 2019, was stillactive, when ithad been vacated and rescinded.
4 { P a g e
FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021
DeWolf, Andrew July 3, 2021 CSEA Local 859 Discharge/Tsimiñâtion Grievance
v. Arbitrator did not review and consider whether Wayne County Medical
Director James I Syrett's Suspensions and Rernediation Plans were done
with improper motives, as required under Civil Service Law §75-b and
Article 23 §10 of contract, therefore the arbitration award violates strong
public policy and must be vacated.
vi. Selective enforcement and disparate treatment evidence for at least 180
comparators was never provided to the arbitrator, therefore a.statutory
mandated review under Civil Service Law §75-b was not performed, and
the arbitration awards violated CPLR §751L
c. Violated Article 23 §7 - Grievant was denied a union and lawyer for the MRB
rep
Decision of August 12, 2019 that Wayne County now relies upon in support of its
tennination decisións.
d. Violated Article 23 §l0 -
i. This is the first warning of incompetence filed against me since 2013, yet
Wayne County immediately moved for termination instead of via
progressive discipline. This violates all tenets of just cause, especially
considering allthe comparators and improper motives.
ii. Grievant and CSEA were brought in July 2, 2021,.without being notified
specifically if thiswas a disciplinary interview or a Loudermill Type
tennination hearing. Wayne County stillfailed to ever explain what this
was but noticed Petitioner orally he was terminated, and he was required
to turn in all equipment This violates §l0 in multiple areas and means we
were unable to properly prepare for the meeting. It also means the
decisions were pre-decided and Wayne County had predetermined to
terminate and well in advance - an impossible
long intentionally creating
remediation plan, improper and bad faith motives.
iii. Article 23 §10 ties Wayne County and binds itto compliance with Civil
Service Law §75-b, including §75-b(3)(A-C), meaning that italso invokes
Labor Law Article 20-c and guarantees Grievant that all the actions taken
by WCALS Medical Director James 1.Syrett SHALL be considered and
ruled by the arbitrators and the grievance process.
5 | P a g e
FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021
DeWolf, Andrew July 3, 2021 CSEA Local 859 Discharge/Termination Grievance
iv. §10 guarantees Grievant cannot be terminated without Just Cause -
Grievant was not allowed or assisted with reedianon by Wayne County,
and instead created an impossible to complete remediation plan to
tenninate the grievant, therefore itfails just cause and must be overturned.
v. §10 - Grievant was suspended one month without never
already pay,
restored that lost pay, and thus already has faced a 2-year suspension and
lost month of wages. Thus, the disciplinary penalty of terrciñation is
excessive, shocking to the comeience, violates strong public policy, and
must be overturned.
vi. §10 violatedt Wayne County must hold the tennimation in abeyance while
the disciplinary grievance process works itself out. already
They
determined I would be tenninated, loss of allpay, loss of all leave, etc. I
must be kept on the payroll while this grievance process is decided, and all
benefits continued.
vii. §10 violated: No Notice of Discipline, charges, etc. were served today July
2, 2021. In fact, nothing in writing was provided at all by Wayne County.
viii. §10 subsection.5: Wayne County went ahead with termination and cutting
off all pay and benefits prior to the ten (10) calendar day grievance
deadlines expiring.
ix. §10 subsection 7: I am being disciplined for alleged protocol violations
that occurred more than 24 months previously, leading to an indefinite
suspension and impossible remediation, and this violated the CBA.
x. §10 - I have been under continuous 2 years of suspension without just
cause, due process, and any remedy. I was reported to FL
REMAC/REMSCO and NYS DOH, while no one else was. I was not
allowed to remediate and instead terminated aaer a failure to remediate
that was out of my control, when I complied in good faith on my end with
everything.
Remedies Sought
1. I be made whole in every way.
6 | P a g e
FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021
DeWolf, Andrew July 3, 2021 CSEA Local 859 Discharge/Termination Grievance
2. Allow me to immediately regionally clear with Wayne County under the Finger Lakes
Regional Clearance Program as motioned by Dr. Syrett and adopted.
unanimously
years'
3. A worth of regular leave time be restored to me to make up for allthe time lost
fighting these unjust actions.
4. All costs I've incurred in fighting these actions be reimbursed to me.
18'
5. I be given choice of WCALS Car/Shift assignments upon return.
6. I be put on the legal Wayne County Public Health Law §3006 QA-QI committee of the
county as a voting participating member for the remainder ofmy time at Wayne County.
7. All my losttime towards retirement be bought back from NYS and I made whole.
8. All discipline and employee counseling be removed from my personne1file.
9. Complete reinstatement as a WCALS ALS Technician.
10. Complete dismissal of all charges and discipline, rescind and vacate everything as ifit
never existed.
11. I be appointed to the County and Union committees to represent WCALS as a CSEA
member on there.
12. Wayne County ceases and desists from all retaliation and interference and instead applies
all policies, laws, and regulations equally for the entire agency and county. No more
selective enforcement.
Grievant's Signature: Date: 3 23 /
Date Submitted:
Submitted to:
Filed Step 1:
Filed Step 2:
Demand for Arbitration Step 3:
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FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021
Wayne County
Advanced Life Support Services
COUNTY
7376 Route 31, Suite 2100, Lyons, NY 14489
Phone: 946-5712 • FAX: (315) 946-5827
JAMES E. LEE (315)
Director
flee@co.wayne.ny.us
July 15, 2021
Step 1 Grievance Response; Andrew DeWolf Grievance dated July 9, 2021 (21-09)
Discussion:
The grievance presented is rather extensive, and, yet again, does not clearly specify an
alleged violation, then tie that violation directly to an applicable section of the CSEA
Agreement, then specify a remedy for each violation. Each grievance, ideally, would
concern only one specific alleged violation. By definition, the CSEA agreement includes
the following under Article 23, Section 2 (e):
"Grievance means any claimed violation, misinterpretation or inequitable application of
agreement."
the specific and express terms of this
After a thorough review of the document as presented, the County will recognize only
"Grievances/IP's/Charges"
two specific items !ocated under as possibly pertinent to an
CSEA agreement based grievance, with those being paragraphs (items) #2 and #3, on
page 5 of the document. The claims are as follows:
"2. WCALS violated CBA Article 4 - On June I was preapproved in to
12, 2021, writing
take/use my regular leave for three days totaling 24 hours of leave. Thus, I am entitled
to still be paid for that leave. On July 2, 2021, I was orally noticed I was terminated and
could not use up my holiday leave or remaining Article 4 regular leave. The contract
does not clearly and unequivocally as required by Labor Law 195 that I forfeitall my
leave of every kind upon termination, thus under CBA Article 4 and Labor Law I am
leave."
entitled to the remainder of my unused holiday and regular
"3. WCALS violated CBA Article 9 - sick leave was earned and should be
My remaining
credited / paid out to me. There is no provision in the contract stating I lose earned sick
leave upon termination or leaving Wayne County at all. Thus it'searned and should be
CBA."
provided to me per
With respect to claim #2, the remedy sought is payout of all remaining holiday and
annual leave credits accrued as of the date of termination. With respect to claim #3, the
alleged violation seeks a remedy of payout of all sick leave credits accrued as of the
date of termination. Otherwise, the County finds absolutely no other section or claim
within the document that meets the above noted definition of grievance, and will not
recognize receipt of any other alleged grievance items, nor will itrender a decision on
any other claim presented.
FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021
Decision:
With respect to the two claims considered, as explained above, the grievance is
denied. There is no provision in the Agreement sections cited, nor any other section,
that specifies that an eñ7pioyee who is involuntarily terminated is entitled to payout of
accrued annual leave, holiday leave, or sick leave credits. The claim made by Andrew
DeWolf that credits should be paid because itis NOT mentioned in the Agreement (the
Agreement is silent) is not valid. There is no provision or precedent for inclusion of any
benefit by exclusion (from the Agreement). Of the three types of leave for which the
grievant Andrew DeWolf is seeking payout of accruals upon involuntary termination,
only annual leave payout is mentioned in the Agreement, with this reference being in
Article 4, Section 3, on page 7, as follows:
"Upon voluntary severance from the County, where a prior twenty (20) calendar day
notice has been given by the employee to the County in writing, an employee shall be
severance."
entitled to unused annual leave pay due at time of
In this case, the severance was not voluntary, and, thus, the advanced notice
requirement is not applicable (and did not occur). The Agreement is silent with respect
to payout of holiday leave or sick leave upon severance of employment in all
circumstances.
Again, referring back to the above definition of "grievance", there is no express violation
of the Agreement by the County. Therefore, there is no due payout of annual leave,
holiday leave, or sick leave credits accrued but unused as of the date of involuntary
termination. The grievance is denied.
Issued by:
es Lee
FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021
Preview
FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021 Received on Local 1000 AFSCME, AFL-CIO GRIEVANCE FORM CSEALocal859-9100-02 WayneCounty Wayne County Employees onbehalfof AndrewDeWolf . 19r200 Name: ______________________________------ Date of Hire. May ___________---------- Address· 7 Sisson Street . 1236085381 Home Member ID. _____________________ Lyons, New York 14489 Department/Agency: E911 WCALS ---------- ---------------------- ____________ _C-CInic all Home Phone: _Î_--1-1_Î_5------------ Job Title:- __ Jim Lee Name of Supervisor: ______________________________________ ______________ ______ STEP 1 __tices 23 an all other applicable articles Contract Articles violated or involved: _ see attached ______________________________________________________________ _________________________ _____________________________________ .____________ ________ ________________ ------_______-------------------------__----------------------- .__ -------------------------------------------------------------------------------------------------- __________________________________________________________________________________________________ -_________---__________________________________ .________________________________________ _____________________________________ ______________________________________________________ __________________________________________________________________________________________________ ________________________________________________________________________________________________-- ____________________ .----___________________________________ ________ _________________________ _________________________________________________________ ._____ __________________________________________________________________________________ ________ __________________________________________________________________________________________________ ____________________________________________________________________ _____________ see attached Remedy Sought: _______________________________________________________________ __________________________________________________________________________ _____--______________---_____________________________ _______________________ _____________________________________________________________________ _____________________ ______________-__________________________________________________________________________________ Date Submitted: _Grievant's Signature: ____ FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021 1" STEP DECISION Date: _________________________ Supervisor's Signature: ______ __________________ Rejected: ____ ._________________ Sustained: _________________________ Decision (use addjdeml sheets if necessary):___________________________________ __________ ______________________ -_______-----______________________________---- ___________________________________________________________________ __________---------- _____________________-----________ _________________ ____ ___________________________---------______------------- .__________ ________________________________________________________________________ -------______--- _______________________________ _______--- ---------------- Date decision receive by Grievant: ____f _f_f ____ Grievant's Signature: ___2__d____ _ __ _ The above Decision is satisfactory:_______ ________________________________ I wish to appeal the above-decisio o): _________________________ STEP 2 Determination Attached Date decision issued: _________ Reviewer's Signature: _______________ ___ The above-decision is satisfactory: ____________________________________________ I wish to appeal the above-decision (yes or no):______________________________ STEP 3 Determination Attached Date decision issued: ___ Reviewer's Sigliatuit:. __________________________ The above-decision is satisfactory: _____________________ _________________ I wish to appeal the above-decision (yes or no): ______________,._____________ __ Date: ____________________ Grievant's Signature: ___________________________ Copies to: Original to Employer Employee Local President Unit President Labor Relations Specialist Forms2010/kim FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021 DeWolf, Andrew July3, 2021 C5EA Local 859 Discharge/TerminationGrievance NOTICE OF GRIEVANCE and Discharge - Failed to remediate Incompetence, Suspension, Grievance ID# 2021- Wayne County Advanced Life Support Services July 3, 2021 Department Head George Bastedo 7376 Route 31, Suite 2100 Lyons, NY 14489 Grievant: CSEA Member Local 859 since 2008 CSEA Unit #9100-02 Andrew DeWolf Date of Hire: 2003 part time. 7 Sisson Street Date of Hire: 2008 full time. Lyons, NY 14489 (315)-398-1195 dewolfap@hotmail.com & adewolf@co.wayne.ny.us Department: Wayne County Emergency Management Division: Wayne County ALS Job Title: ALS Technician- 101 Policy Supervisors: Department Head George Bastedo, WCALS Director James Lee, WCALS Medical Director James I Syrett, Chief Paramedic Eric Dierks. Contract Articles, Laws, Regulations involved: Wayne County and CSEA Contract Jan 1, 2019-December 31, 2023: • Article 4 - Annual Leave • Article 9 - Sick Leave • Article 23 - Grievance Procedure NYS Labor Law NYS Civil Service Law §75-b NYS Taylor Law §209a NYS Administrative Procedures Act Articles #1-5 NYS Public Health Law §12, §l2a, §16, §206, Article 30, Article 30a-c. NYS Public Officers Law §2, §3 NYS Civil Practice Law and Rules Article 75, §7511 NYS Civil Practice Law and Rules Article 78 Title 10 NYCRR Part 800 NYS Department of Health Bureau of EMS Policies #s 95-03, 98-09, 06-01, 08-03, 11-03, 11-05, 12-02, 12-03, 12-04, 14-01. NYS Constitution - Equal Treatment and guarantee of due process. 5* 14* United States Constitution and Amendmats 42 USC 1983 4 NYCRR 1.2 4 NYCRR 35.1 Any and all others that may apply 1 | P a g e FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021 De Wolf, Andrew J uly3, 2021 CSEA Local 859 Discharge/Termination Grievance Dates of occurrence: 1. On or about April 26, 2018 through 2, 2021 - Wayne retaliated via multiple July County methods for at least eleven (11) to fifteen (15) or more Civil Service Law §75-b protected activities and Taylor Law §209a/CBA Article 23 protected activities. This retaliation included social and profeuianal exclusions, extra and special targeted Quality Assurance and Management Scrutiny, denials of bid and leave, harassment, disciplinary actions, assignments/reassignments, performance appraisal changes and performance evaluation changes, and a failure to remediate and reinstaternent, charges of misconduct with discipline, charges of incompetence with discipline of termination, and for thefirst time in Wayne County history two formal NYS DOH-5245 formal complaints to NYS DOH that were never done to anyone else. a. Wayne County actively refused to help me remediate this time, but on November 27, 2013, Director James Lee affirmed in writing they would assist me in any way possible with retraining and assisting and modifying the patient eare decision process that 1 follow. Wayne County actively assisted me in a complete remediation and return to service in 2013, will not do so this time. b. I have knowledge and belief that Wayne County allowed and actively also helped in a similar manner former ALS Tech Kim Hammond and Jonathan Sirkin to remediate with Wayne County ALS and believe additional cases exist which will show pretextual retaliatory improper motives and disparate treatment, selective enforcement c. Thus, the failure and refusals to modify my remediation plan violate Wayne County ALS past practices, show disparate treatment, and are done with improper motives, violate just cause and contract, as well as laws and state and federal constitutions. d. The motivations of Dr. James I Syrett enacting the suspensions and the impossible NYS DOH EMS Policy 14-01 remediation plans must be raised, material evidence of disparate treatment considered along with prima facie evidence of threats, and must be ruled on per statutes Civil Service Law §75-b and Taylor Law §209a, as well as CBA Article 23. 2 | P a g e FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021 DeWolf, Andrew July 3, 2021 CSEA Local 859 Discharge/Termination Grievance e. Wayne County treated me versus the ALS Techs: Brandon disparately following Howard, Frank Adams, Joan Stark, Bill Colburn, Eric Burns, Eric Dierks, Charles Drollette, Adam Elsbree, Jason Haag, Eldred Schell, Keith Simon, James Lee, Nick Lowry, Jonathan Sirkin, De Luca, Kim Hammond, Michael Harris, Anthony Jim Hagelin, Jeremy Oakley, Patricia Pierson Simon, Robert Breese, Kayla Macdonald, Matthew Wadsworth, Keith Geldof, Tyler Hares, Dave Beachel, Evan Fendt, Jay Pelton, and others that will be raised. 2. On or about November 30, 2013, through July 2, 2021 Wayne County retaliated via multiple methods for union protected activities, violating CBA Article 23 and Taylor Law §209a. This included a failure to remediate and reinstatement. 3. From 2010 through July 2, 2021, Wayne applied selective enforcement and County disparate treatment for how itenforced it'spolicies and protocols, clinically suspended ALS Techs, remediated ALS Techs, and reinstated ALS Techs. 4. From 2010 through July 24 2021, Wayne applied selective enforcement and County disparate treatment in how ithandled formal complaints and referrals to Pinger Lakes REMAC/REMSCO, NYS SEMAC/SEMSCO, and NYS Department of Health, including via DOH-5245 written complaints. 5. April 2019, Notice of Discipline - Selective enforcement of misconduct- 10, insubordination and disparate treatment. 6. June 24, 2019, NYS DOH EMS Policy 14-01 suspension with pay, remediation ordered. 7. September 5, 2019, Notice of Discipline -Incompetence, Suspension without Pay, Termination as penalty. Selective enforcement of protocol violations and disparate treatment in how protocol violatinrm were dealt remediated, and reinstated. with, 8. February 18, 2020, NYS DOH EMS Policy 14-01 remediation plan modified. 9. December 2020 through 2021 - Reassigned to Health Services July 2, Building doing COVID Screenings instead of helping me with remediation. No other ALS Tech ever forcibly reassigned and forced to do COVID Screenings instead of remediating so I can be reinstated. 10. June through 2021 - Wayne refused to allow me to remediate at 24, 2019, July 2, County Wayne County, failed to assist me with remediation in any rñaññct. However, Wayne County allowed at least one other ALS Tech to also be suspended from elinical duties by 3 1P a g e FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021 DeWolf, Andrew July 3, 2021 CSEA Local 859 Discharge/Termination Grievance the Medical Director and allowed that ALS Tech to remediate with Wayne County ALS and return to service. Disparate treatment and selective enforcement. Grievances/IP's/Chggg l. On July 2, 2021, between 8:58am and 10:12pm I entered an oral grievance to WCALS Director James Lee, Attorney Dan Connors, HR Chris Kalinski, and CSEA LRS Karen Spotford. It was acknowledged arid affirmed a written one would timely follow. 2. WCALS violated CBA Article 4 - On June 12, I was preapproved in to 2021, writing take/use my regular leave for three days totaling 24 hours of leave. Thus, I am entitled to stillbe paid for that leave. On July 2,2021, 1 was orally noticed I was terminated and could not use up my holiday leave or remaining Article 4 regular leave. The corttract does not clearly and unequivocally as reqttired by Labor Law §195 that I forfeit all my leave of every kind upon termination, thus under CBA Article 4 and Labor Law I am entitled to the remainder of my unused holiday and regular leave. 3, WCALS violated CBA Article 9 - sick leave was earned and should be My remaining credited/paid out to me. 4. WCALS violated CBA Article 23 in multiple ways and means: a. Violated Article 23 §1 by harassing, interfering, and retaliating against me for filing grievances. WCALS failed to help me remediate and failed to reinstate me as a result of filing grievances (See Dr. James I Syrett's promises he would do this on or about December 21, 2018, December 28, 2018, January 11, 2019, January 25,.2019, February 26, 2019, May 16, 2019. b. Violated Article 23 §6 & CPLR §7511 - i. Agreed to reopen the arbitration in violation of clear unequivocal terms that the arbitration decision is fmal and binding. ii. There was no end date given as to when 1 must rentediate by, and under CPLR §7511 a clear and definite final award was not rendered. iii. Thus, there is NO deadline by me toremediate by and I cannot be terminated for failure to remediate unless Wayne County tried to remediate me themselves and I failed. iv. Wayne County falsely informed the arbitrator that the MRB decision of August 12, 2019, was stillactive, when ithad been vacated and rescinded. 4 { P a g e FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021 DeWolf, Andrew July 3, 2021 CSEA Local 859 Discharge/Tsimiñâtion Grievance v. Arbitrator did not review and consider whether Wayne County Medical Director James I Syrett's Suspensions and Rernediation Plans were done with improper motives, as required under Civil Service Law §75-b and Article 23 §10 of contract, therefore the arbitration award violates strong public policy and must be vacated. vi. Selective enforcement and disparate treatment evidence for at least 180 comparators was never provided to the arbitrator, therefore a.statutory mandated review under Civil Service Law §75-b was not performed, and the arbitration awards violated CPLR §751L c. Violated Article 23 §7 - Grievant was denied a union and lawyer for the MRB rep Decision of August 12, 2019 that Wayne County now relies upon in support of its tennination decisións. d. Violated Article 23 §l0 - i. This is the first warning of incompetence filed against me since 2013, yet Wayne County immediately moved for termination instead of via progressive discipline. This violates all tenets of just cause, especially considering allthe comparators and improper motives. ii. Grievant and CSEA were brought in July 2, 2021,.without being notified specifically if thiswas a disciplinary interview or a Loudermill Type tennination hearing. Wayne County stillfailed to ever explain what this was but noticed Petitioner orally he was terminated, and he was required to turn in all equipment This violates §l0 in multiple areas and means we were unable to properly prepare for the meeting. It also means the decisions were pre-decided and Wayne County had predetermined to terminate and well in advance - an impossible long intentionally creating remediation plan, improper and bad faith motives. iii. Article 23 §10 ties Wayne County and binds itto compliance with Civil Service Law §75-b, including §75-b(3)(A-C), meaning that italso invokes Labor Law Article 20-c and guarantees Grievant that all the actions taken by WCALS Medical Director James 1.Syrett SHALL be considered and ruled by the arbitrators and the grievance process. 5 | P a g e FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021 DeWolf, Andrew July 3, 2021 CSEA Local 859 Discharge/Termination Grievance iv. §10 guarantees Grievant cannot be terminated without Just Cause - Grievant was not allowed or assisted with reedianon by Wayne County, and instead created an impossible to complete remediation plan to tenninate the grievant, therefore itfails just cause and must be overturned. v. §10 - Grievant was suspended one month without never already pay, restored that lost pay, and thus already has faced a 2-year suspension and lost month of wages. Thus, the disciplinary penalty of terrciñation is excessive, shocking to the comeience, violates strong public policy, and must be overturned. vi. §10 violatedt Wayne County must hold the tennimation in abeyance while the disciplinary grievance process works itself out. already They determined I would be tenninated, loss of allpay, loss of all leave, etc. I must be kept on the payroll while this grievance process is decided, and all benefits continued. vii. §10 violated: No Notice of Discipline, charges, etc. were served today July 2, 2021. In fact, nothing in writing was provided at all by Wayne County. viii. §10 subsection.5: Wayne County went ahead with termination and cutting off all pay and benefits prior to the ten (10) calendar day grievance deadlines expiring. ix. §10 subsection 7: I am being disciplined for alleged protocol violations that occurred more than 24 months previously, leading to an indefinite suspension and impossible remediation, and this violated the CBA. x. §10 - I have been under continuous 2 years of suspension without just cause, due process, and any remedy. I was reported to FL REMAC/REMSCO and NYS DOH, while no one else was. I was not allowed to remediate and instead terminated aaer a failure to remediate that was out of my control, when I complied in good faith on my end with everything. Remedies Sought 1. I be made whole in every way. 6 | P a g e FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021 DeWolf, Andrew July 3, 2021 CSEA Local 859 Discharge/Termination Grievance 2. Allow me to immediately regionally clear with Wayne County under the Finger Lakes Regional Clearance Program as motioned by Dr. Syrett and adopted. unanimously years' 3. A worth of regular leave time be restored to me to make up for allthe time lost fighting these unjust actions. 4. All costs I've incurred in fighting these actions be reimbursed to me. 18' 5. I be given choice of WCALS Car/Shift assignments upon return. 6. I be put on the legal Wayne County Public Health Law §3006 QA-QI committee of the county as a voting participating member for the remainder ofmy time at Wayne County. 7. All my losttime towards retirement be bought back from NYS and I made whole. 8. All discipline and employee counseling be removed from my personne1file. 9. Complete reinstatement as a WCALS ALS Technician. 10. Complete dismissal of all charges and discipline, rescind and vacate everything as ifit never existed. 11. I be appointed to the County and Union committees to represent WCALS as a CSEA member on there. 12. Wayne County ceases and desists from all retaliation and interference and instead applies all policies, laws, and regulations equally for the entire agency and county. No more selective enforcement. Grievant's Signature: Date: 3 23 / Date Submitted: Submitted to: Filed Step 1: Filed Step 2: Demand for Arbitration Step 3: 7 [ P a g e FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021 Wayne County Advanced Life Support Services COUNTY 7376 Route 31, Suite 2100, Lyons, NY 14489 Phone: 946-5712 • FAX: (315) 946-5827 JAMES E. LEE (315) Director flee@co.wayne.ny.us July 15, 2021 Step 1 Grievance Response; Andrew DeWolf Grievance dated July 9, 2021 (21-09) Discussion: The grievance presented is rather extensive, and, yet again, does not clearly specify an alleged violation, then tie that violation directly to an applicable section of the CSEA Agreement, then specify a remedy for each violation. Each grievance, ideally, would concern only one specific alleged violation. By definition, the CSEA agreement includes the following under Article 23, Section 2 (e): "Grievance means any claimed violation, misinterpretation or inequitable application of agreement." the specific and express terms of this After a thorough review of the document as presented, the County will recognize only "Grievances/IP's/Charges" two specific items !ocated under as possibly pertinent to an CSEA agreement based grievance, with those being paragraphs (items) #2 and #3, on page 5 of the document. The claims are as follows: "2. WCALS violated CBA Article 4 - On June I was preapproved in to 12, 2021, writing take/use my regular leave for three days totaling 24 hours of leave. Thus, I am entitled to still be paid for that leave. On July 2, 2021, I was orally noticed I was terminated and could not use up my holiday leave or remaining Article 4 regular leave. The contract does not clearly and unequivocally as required by Labor Law 195 that I forfeitall my leave of every kind upon termination, thus under CBA Article 4 and Labor Law I am leave." entitled to the remainder of my unused holiday and regular "3. WCALS violated CBA Article 9 - sick leave was earned and should be My remaining credited / paid out to me. There is no provision in the contract stating I lose earned sick leave upon termination or leaving Wayne County at all. Thus it'searned and should be CBA." provided to me per With respect to claim #2, the remedy sought is payout of all remaining holiday and annual leave credits accrued as of the date of termination. With respect to claim #3, the alleged violation seeks a remedy of payout of all sick leave credits accrued as of the date of termination. Otherwise, the County finds absolutely no other section or claim within the document that meets the above noted definition of grievance, and will not recognize receipt of any other alleged grievance items, nor will itrender a decision on any other claim presented. FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021 Decision: With respect to the two claims considered, as explained above, the grievance is denied. There is no provision in the Agreement sections cited, nor any other section, that specifies that an eñ7pioyee who is involuntarily terminated is entitled to payout of accrued annual leave, holiday leave, or sick leave credits. The claim made by Andrew DeWolf that credits should be paid because itis NOT mentioned in the Agreement (the Agreement is silent) is not valid. There is no provision or precedent for inclusion of any benefit by exclusion (from the Agreement). Of the three types of leave for which the grievant Andrew DeWolf is seeking payout of accruals upon involuntary termination, only annual leave payout is mentioned in the Agreement, with this reference being in Article 4, Section 3, on page 7, as follows: "Upon voluntary severance from the County, where a prior twenty (20) calendar day notice has been given by the employee to the County in writing, an employee shall be severance." entitled to unused annual leave pay due at time of In this case, the severance was not voluntary, and, thus, the advanced notice requirement is not applicable (and did not occur). The Agreement is silent with respect to payout of holiday leave or sick leave upon severance of employment in all circumstances. Again, referring back to the above definition of "grievance", there is no express violation of the Agreement by the County. Therefore, there is no due payout of annual leave, holiday leave, or sick leave credits accrued but unused as of the date of involuntary termination. The grievance is denied. Issued by: es Lee FILED: WAYNE COUNTY CLERK 08/25/2021 10:26 AM INDEX NO. CV087668 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/25/2021