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Thursday, January 10, 2013

A pattern of harassing, demeaning, and continuous bullying of less senior colleagues warrants employee’s termination


A pattern of harassing, demeaning, and continuous bullying of less senior colleagues warrants employee’s termination
Denhoff v Mamaroneck Union Free Sch. Dist., 2012 NY Slip Op 08729, Appellate Division, Second Department

A §3020-a arbitrator sustained disciplinary charges filed against a guidance counselor and held that the school district had just cause to terminate her from her position. Supreme Court dismissed the guidance counselor’s petition and the Appellate Division affirmed the lower court’s ruling.

The arbitrator had found the guidance counselor guilty of 27 specifications of misconduct set out in 14 charges related to the guidance counselor’s conduct over the course of three years that involved a pattern of "harassing, demeaning, and continuous bullying of her less senior colleagues, as well as efforts to sabotage the ability of certain colleagues to gain tenure."

The Appellate Division, noting that Education Law §3020-a(5) limits judicial review of an arbitrator's determination, said that where, as here, parties are subject to compulsory arbitration, the award must not only satisfy the provisions set out CPLR §7511[b][1][i], [iii], [iv,] the award must satisfy yet an additional layer of judicial scrutiny, namely having evidentiary support and neither being arbitrary nor capricious. Further, the court said that "When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists," citing Matter of Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d 1012.

On appeal the guidance counselor challenged the arbitrator's finding her guilty of several of the charges sustained against her that the court said were raised for the first time on appeal. Accordingly, an appeal of those elements of the award were not properly before the court. 

As to those charges and specifications properly before the Appellate Division, the court found that the award was not arbitrary and capricious nor irrational, and that there was evidentiary support for the arbitrator's finding of guilt as to each of the charges.

In particular, the Appellate Division commented that the arbitrator “engaged in a thorough analysis of the circumstances, evaluated the witnesses' credibility, and arrived at a reasoned conclusion that termination of the [guidance counselor's] employment was an appropriate penalty.” In other words, the Appellate Division found that “[I]t was rational for the arbitrator to find that the guidance counselor’s actions warranted termination under the circumstances of this case.”

The decision is posted on the Internet at:

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A Reasonable Disciplinary Penalty Under the Circumstances - A guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. Click on http://nypplarchives.blogspot.com for additional information about this 600+ page electronic [e-book] publication.

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Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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