Employee's absence from work as the result of being convicted and sentenced to two years in prison deemed to have impeded the Employer’s ability to fulfill its mission

A New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ], Jonathan Fogel, recommended termination of the employment of a sanitation worker [Employee] who was absent without leave [“AWOL”] for approximately ten months. 

While employed by the New York City Department of Sanitation [Agency], Employee was convicted of assault in the second degree and sentenced to two years in prison. His "Employee's absence from work due being convicted and sentenced to two years in prison was deemed to have impeded the Employer’s ability to fulfill its mission as the result of his incarceration.

The Employee attempted to have the Agency's administrative disciplinary charge dismissed for improper service because he was not personally served while in prison. Judge Fogel, however, found that the method of service used by the Agency - mailing the disciplinary charge to the Employee by certified mail via the United States Postal Service addressed to the Employee where Employee was incarcerated - satisfied due process requirements.

There was no dispute that Employee had been absent from work since February 2025 and the ALJ found that Agency had proven the charge. Although Employee had made an effort to retain his job by applying for a leave of absence, Judge Fogel found that the Employee’s continued absence impeded the Agency’s ability to fulfill its mission and recommended the Employee be terminated from his position.

Click HERE to access ALJ Fogel's findings and recommended penalty posted on the Internet.

Employees provisionally appointed to their position pursuant to §65 of New York State's Civil Service Law typically so serve at the pleasure of the appointing authority

Supreme Court granted Plaintiff's petition seeking to annul the decision of the New York City Department of Correction [DOC] to remove Plaintiff from his Assistant Deputy Warden position to which he had been provisionally appointed and restore him to his former employment status of permanent Captain. 

DOC appealed and the Appellate Division "unanimously reversed the Supreme Court's ruling "on the law," denied Plaintiff's petition and dismissed Plaintiff's action brought pursuant to CPLR Article 78.

Explaining that Supreme Court should have denied Plaintiff's petition seeking to annul DOC's decision to discontinue his employment from his provisional appointment as Assistant Deputy Warden to his former position in which he held permanent appointment as a Captain, the Appellate Division noted that provisional appointments made pursuant to Civil Service Law §65 "carry no expectation nor right of tenure" and provisionally appointed incumbents are not entitled to the protections in the position afforded permanent employees pursuant to Civil Service Law §75. 

Citing Mahinda v Board of Collective Bargaining, 91 AD3d 564, the Appellate Division's decision notes that an employee serving in a position as a provisional employee may "be terminated at any time, without a hearing, for almost any reason, or for no reason at all," so long as the termination does not violate any constitutional or statutory provision and is not arbitrary and capricious or done in bad faith."

In addition, the Appellate Division pointed out that Plaintiff's provisional appointment did not ripen into a permanent one after a one-year probationary period as [such] appointments are mere stop-gaps" and may be succeeded by a permanent appointment only as a result of an examination and eligibility in accordance with New York State's Civil Service Law.

The Appellate Division's decision also pointed out that the fact that Plaintiff was served with disciplinary charges and specifications and notice him of his right to a hearing "does not suggest that his appointment as assistant deputy warden was permanent as Petitioner's underlying permanent appointment to the position of captain entitled him to such charges and a hearing before being removed from his Captain's position or subjected to an other disciplinary penalty such as a loss of vacation days in contrast to Plaintiff's being subject to removal from his provisional appointment as assistant deputy warden at any time without charges preferred, a statement of reasons being given or a hearing being held.

Turning to other arguments advanced by Plaintiff, the Appellate Division found that Plaintiff's race, gender, and disability discrimination claims pursuant to State and City Human Rights Laws failed because the record contained no evidence giving rise to an inference of unlawful discrimination and Plaintiff presented no evidence that DOC's decision to restore him to his permanent position of Captain following Plaintiff's violating a number of DOC's rules and regulations was arbitrary and capricious or done in bad faith.

Click HERE to access the Appellate Division's decision posted on the Internet.

Selected GovTech Webinars for the week of July 20, 2026

 

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Appellate Division finds that Plaintiffs, alleging violations State and Federal Civil Rights Law, failed to sufficiently allege a cause of action to recover damages

In this action by certain employees to recover damages for allegedly having to work in an hostile work environment and had been subjected to "retaliation" because they had complained, the Professional Staff Congress [Union] and other named respondents [Defendants] appealed a Supreme Court's order denying Defendants' motion to dismiss the Plaintiffs complaint insofar as asserted against them.

Plaintiffs, employees of New York City Kingsborough Community College,  had commenced the instant action against the Union and certain officers of the Union representing the Plaintiffs seeking to recover damages for alleged religious discrimination. Plaintiffs alleged, among other things, that their employer, The City University of New York [CUNY], certain individual coworkers, and the Union had engaged in discrimination against them in the workplace because of the Plaintiffs' religion.

Noting a work environment is generally controlled by the employer, the Appellate Division said "labor unions have 'no affirmative duty' to prevent harassment or discrimination within the confines of the workplace" and the union's obligation not to discriminate arises "only when the union is performing an agency function in a representational capacity". The Appellate Division opined that "A union can only be liable pursuant to Title VII for situations in which the union is responsible for discrimination against or creating a hostile environment because of the member's protected characteristic".

Pointing out that Title VII, the NYS Human Rights Law, and the NYC Human Rights Law all require a plaintiff suing a union for discrimination to demonstrate actions or activities which may be properly imputed to a union such as:

(1) "The Union breached its duty of fair representation to plaintiff:

(2) "[The] Union's conduct was motivated by animus toward the plaintiff's protected status"; and

(3) "[A union representative's] role in causing or attempting to cause a hostile work environment".

Further, the Appellate Division explained that a plaintiff must show not only that the union had actual or imputed knowledge of the improper conduct, but also that the union representative's conduct related to union activity and that in acting in such a manner, the representative breached the union's duty of fair representation.

Observing that in the instant matter "there were no allegations in the [Plaintiffs]  complaint that any of the alleged discriminatory acts were undertaken by union representatives acting on behalf of the union or that any of the alleged acts were related to union activity, and no allegations [in the Plaintiffs' complaint] that the union breached its duty of fair representation", the Appellate Division said that the Supreme Court should have granted that branch of the Union's motion pursuant to CPLR 3211(a)(7) to dismiss allegations of a hostile work environment insofar as asserted against the Union.

As to alleged "retaliation", the Appellate Division noted that "To make out a prima facie case of retaliation by a union, a plaintiff must show that (1) [the plaintiff] was engaged in an activity protected under Title VII and known to the union; (2) [the plaintiff] suffered adverse union action; and (3) there was "a causal connection between the protected activity and the union's actions". In the words of the Appellate Division, "Supreme Court also should have granted that branch of the motion of the union defendants which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging retaliation insofar as asserted against them".

Click HERE to access the Appellate Division's decision posted on the Internet.

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