Preparing a defense to disciplinary charges

Preparing a defense to disciplinary charges
Guastafeste v NYC Dept. of Sanitation, App. Div., 1st Dept., 282 A.D.2d 398

When an employee is served with disciplinary charges, he or she is entitled to be given information concerning such charges sufficient to permit his or her adequately preparing his or her defense [Pachucki v Walters, 56 AD2d 677]. Further, case law has long held that an employee may not be found guilty of acts of misconduct or incompetence that have not been charged [Shuster v Humphrey, 156 NY 231].

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The Guastafeste case focused on the issue of providing the employee with sufficient information concerning the charges in order for him or her to be able to prepare his or her defense so that it cannot rightfully be claimed that the individual was found guilty acts or omissions that were not charged.

Joseph Guastafeste, a New York City Department of Sanitation employee, was found guilty of misconduct and suspended him for 30 days without pay following his involvement in an accident while operating a department motor vehicle.

Guastafeste appealed, contending that the charges of misconduct filed against him by the department did not specifically charge him with having "caused the accident by negligently losing control of his vehicle." Accordingly, he argued, he had not been given an adequate opportunity to prepare his defense against this allegation.

The Appellate Division decided that it was clear from the specifications set out in the charges filed against him that Guastafeste was being charged with "negligently operating his vehicle." This, said the court, meant that Guastafeste had been given sufficient notice of this charge so as to enable him to adequately prepare his defense.

As to the penalty imposed -- 30 days suspension without pay -- the Appellate Division ruled that "for the misconduct proved against [Guastafeste], some of which involved violations of Department of Sanitation safety rules, [such a penalty] does not shock the judicial conscience and accordingly may not be disturbed."

In contrast, in Smith v Davis, a case involving alleged violations of the Americans With Disabilities Act and other civil rights law violations, decided by the U.S. Circuit Court of Appeals, Third Circuit on May 07, 2001, the court found that the explanation provided by Luzerne County [NJ] for terminating county employee Rodney Smith -- violation of its drug and alcohol policy -- did not tell Smith what he did to bring about his termination in sufficient detail as to justify the district court's summarily dismissing his complaint.

The court said that there "does not seem to be anything in the record specifying precisely what aspect of this policy Smith was found to have violated. While the County's brief contended that Smith was fired for absenteeism, his supervisors' declarations did not mention absenteeism as the basis for his termination. The court also noted that the County's "drug and alcohol policy contains no provision about absenteeism or sick leave that applies to Smith's termination."

According to the Circuit Court, "[w]hile absenteeism may have been what the [County] had in mind when they terminated him, there is a genuine issue as to whether this reason was legitimate or pretextual, particularly since there is evidence that Smith performed his duties to the apparent satisfaction of his supervisors for over six years and carried a case load substantially higher than his coworkers."

The Circuit Court noted that while Smith may have been fired for some other legitimate reason related to alcohol use, it would be improper to grant the County's motion for summary judgment without specific evidence that Smith was fired for such a reason.

A related point involving summary termination pursuant to a disciplinary grievance settlement is clearly illustrated in ruling by the Appellate Division in Taylor v Cass, 505 NYS2d 929. Under the terms of the disciplinary settlement Taylor was subject to termination without any hearing if, in the opinion of his superior, his job performance was adversely affected by his consumption of alcohol. Taylor was subsequently terminated from his position for sleeping on the job. The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not authorized by the settlement agreement and directed his reinstatement with back pay and benefits.

Sometimes an employee will demand "a bill of particulars" requiring the employer to set out the charges and specifications filed against the individual in greater detail. Although Education Law Section 3020-a 3 c(iii)(C) indicates that an administrator or teacher has the right to demand a "bill of particulars" concerning the charges and specifications filed against him or her, no similar provision is included in Section 75 of the Civil Service Law.

In some instances the disciplinary grievance procedure set out in a collective bargaining agreement allows the employee to demand a "bill of particulars."