2012 Conference Executive Record Report.pdf - YMCA of Greater ...

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Team 2 v 20 MARK RUTKOWSKI, Appellant, v. THE YMCA, Respondent. Supreme Court, Appellate Division, First Department, New York March 10, 2012, Argued March 10, 2012, Decided COUNSEL: Dan Liesner and Evan Prentice, for Appellant. Ashley Hampson and Brian Shiminski, for Respondent. JUDGES: Dewitt, Domagola, Parakkatu, Blaszczyk, Furia OPINION BY: Last OPINION We the Appellate Court of the State of New find in favor of the appellant, Rutkowski. The appellant successfully proved that Rutkowski's termination and loss of pension were too severe. The appellant adequately proved that Rutkowski’s actions did not constitute as moral turpitude. The crucial issue of this case was that Rutkowski's punishment of termination from his job was disproportionate to the offense. The appellant compared the case at bar to Muraik v. Landi, in which the appellant had a 29 year career with only one incident prior to the act of fraud. Similarly, Rutkowski was a model employee with many years of good service and only one prior offense. Though both employees committed fraud, the appellant argued that Rutkowski acted without "malice or selfishness." Rutkowski's actions were most certainly motivated by a desire to serve the students of the Youth and Government program, who were not able to pay for the conference. The appellant in our case also successfully compared the records of these men, arguing that Rutkowski's service overrode his fraud. In the case of Romano v. Town Board of Town of Colonie, the petitioner had received several warnings about his excessive absenteeism. Appellant demonstrated that Rutkowski had received no warning prior to his termination and that this termination was erroneous and thusly, merited a new trial. The appellant also used Alston v. Morgan to counter that Rutkowski's absences were not excessive and took place over a shorter time-span. The second most crucial issue was that of the petitioner's pension. The petitioner defined a pension as an award for good service. In the case of Goudy v. Schaffer, the petitioner was terminated after 42 counts of incompetence and misconduct, yet his pension was restored after they determined it was too severe a punishment. Similar to Rutkowski's case, Goudy had to provide for his family. The appellant in our case did not excuse Rutkowski's act of fraud, and recognized that Rutkowski inappropriately redirection $20,0000. The petitioners argued that Rutkowski's prior service earned him the right to keep his pension, and encouraged that his only punishment be repaying the money that he had taken for the Youth and Government program. He compared Rutkowski's right to maintain his pension to Muraik v. Landi, where it was determined that due to his years of good service, and that because Mark had a family support, he deserved his pension. We believe that the decision of the lower court should be overturned and that Rutkowski receives both his job and pension with the $20,000 he embezzled, deducted from his pension. 47
Team 7 v 13 MARK RUTKOWSKI, Appellant, v. THE YMCA, Respondent. Supreme Court, Appellate Division, First Department, New York COUNSEL: for Appellant. March 10, 2012, Argued March 10, 2012, Decided Erin Loftus and Vimbai Ushe, Liam McGurl, for Respondent. JUDGES: Orr, Mazzeo, Jacobs, Cicerelli, Kappel, Sutton OPINION BY: Last OPINION We the Appellate Court of the State of New York partially affirm and partially overturn the decision of the lower court. The appellant properly justified the security of Mark Rutkowski’s pension while the respondent properly justified the termination of Mark Rutkowski. The appellant successfully proved that the 40-year career of Mark Rutkowski provided a sufficient reason to keep his pension. The respondent on the other hand proved that Rutkowski’s absences, along with the redirecting of $20,000, was sufficient grounds for termination. Crucial to this case is the determination of when a removal of a pension is improper. In the case of Muraik v. Landi, termination of a pension was improper where Muraik’ had a 29-year career and the evidence showed that it would impact the ability to support his family. The petitioners successfully analogized the 40-year career of Mark Rutkowski and the impact a pension has on his ability to support his family to the Muraik case. The petitioner also successfully argued that a pension is a reward for past years of good service and Mark Rutkowski had 40 great years as a YMCA employee, as seen through his positive impact on the Youth and Government program. The respondent failed to cite case law that would justify the removal of Mark Rutkowsky’s pension. Although the respondent brought about the Alex Bowerman “speedo” incident in 2003, he could not refute the argument presented by the petitioner. The respondent attempted to tarnish Mark Rutkowski’s almost clean slate with this prior incident, but the Court finds that this single incident does not cast a shadow on Mark’s otherwise exemplary 40-year career. Along with bringing about the Alex Bowerman “speedo” incident, the respondent tried to refute the case of Muraik v. Landi but could not differentiate that case from the current case. In conclusion, the Court finds that the removal of Mark Rutkowski’s pension is shocking to one’s sense of fairness and must be reversed. Secondly, a crucial factor of this case is when termination of employment is considered just. In the case of Alston v. Morgan it states, “the determination that the petitioner be dismissed was not so disproportionate to the offenses committed as to be shocking to one’s sense of fairness.” Here, the respondent successfully used the case of Alston v. Morgan to justify termination on the grounds of Mark Rutkowski’s numerous absences. The respondent linked Alston’s unauthorized absences to Mark Rutkowski’s unauthorized absences. Also, the respondent emphasized that the absences in this case were for used to commit fraud, strengthening the justification for termination. Furthermore, the Court agrees with the Respondent that the YMCA needs to set a precedent for those who commit crimes of moral turpitude and Mark must be used to set this precedent. The petitioners failed to convince the Court that Mark’s absences should not being grounds for termination of his employment. While the petitioners attempted to distinguish Mark’s personality from his misconduct, we find that the termination of Mark Rutkowski’s job was an appropriate punishment for his offense and is not shocking to one’s sense of fairness. With respect to the pension, we overturn the lower court’s decision. With respect to the termination of employment, the lower court’s decision is affirmed. 48
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PROGRAM SPONSORED BY: PROGRAM SPON
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2012 New York State YMCA Youth & Go
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New York State YMCA Foundation, Inc
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DISTRICT 6 Clark Cayla Kenney Tess
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Clement A. Duran Delegate Scholarsh
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