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August 09, 2010

Settling disciplinary actions

Settling disciplinary actions
Wolfe v Jurczyski, 241 AD2d 88

In some disciplinary cases an employee is offered a settlement that typically provides for summary termination of the individual without a hearing if he or she violates any of the terms of the settlement. The Wolfe case explores the consequences of an employee’s failure to comply with the terms of a disciplinary settlement agreement.

James N. Wolfe, a Schenectady Police Lieutenant, was told that formal disciplinary charges would be filed against him in connection with an off-duty incident during which it was alleged that he had threatened a civilian with a gun.

The city subsequently agreed that it would not file formal disciplinary charges against Wolfe if he “enrolled and completed an established alcohol abuse treatment program, underwent a psychological evaluation, refrained from visiting certain establishments where liquor is served and divested himself of all off-duty weapons.”

The September 19, 1995 agreement also provided that Wolfe’s failure to comply with or satisfactorily complete any element of the agreement to Schenectady’s satisfaction “will be cause for [Wolfe’s] immediate dismissal without a hearing.”

On October 29, 1995 Wolfe told the Chief of Police that he had not yet begun a treatment program and was still drinking. He entered a program the following day. However the Chief subsequently learned that Wolfe, while intoxicated, had been involved in an incident on October 27, 1995.

After conducting an investigation of the October 27, 1995 incident, the Department told Wolfe that he could either resign or be terminated for violating the settlement agreement. After conferring with union representatives, Wolfe decided to submit a letter resigning from his position.

However, Wolfe apparently changed his mind about resigning and sued, seeking a court order reinstating him to his former position. He argued that he had resigned as a result of “duress, coercion and undue influence.” Wolfe’s theory was that under the circumstances his resignation was not voluntary and should be declared void. A New York State Supreme Court justice dismissed Wolfe’s Article 78 petition and the Appellate Division affirmed the lower court’s action.

The Appellate Division pointed out that Wolfe’s resignation was not involuntary simply because he was told that if he did not resign he would be dismissed unless the employer did not have any right to terminate his employment. But here, said the Court, Wolfe had voluntarily entered into an agreement that expressly allowed the department to terminate him without a hearing if he failed to comply with its terms to the satisfaction of the Chief of Police.

The Appellate Division ruled that under the circumstances, offering to allow Wolfe to resign instead of being summarily dismissed “cannot be deemed improperly coercive.”

It should be remembered, however, that courts will usually give controlling weight to specific language contained in the settlement agreement.

This was demonstrated in the Appellate Division’s ruling in Taylor v Cass, 505 NYS2d 929. The key element in the Taylor case was a disciplinary settlement agreement that provided that the employee, Taylor, would be subject to termination without any hearing if, in the opinion of his superior, his job performance was adversely affected by Taylor’s consumption of alcohol.

Taylor, however, was subsequently given a “Notice of Infraction” charging him with failing to give a fair day’s work and sleeping during scheduled working hours. A few days later he was terminated without a hearing, purportedly as authorized by the disciplinary settlement agreement.

He sued, and the Appellate Division affirmed the lower court’s ruling reinstating Taylor to his position with the County “with full retroactive salary and contract benefits from March 30, 1984.” The problem, said the Court, was that Taylor had not been terminated for the sole reason specified in the settlement agreement: intoxication on the job.

On this point, the decision specifically took note of the fact that Taylor’s superior testified that Taylor “was terminated solely for the reasons set forth in the Notice of Infraction” sent to him -- sleeping on the job and failure to give a fair day’s work.

The Appellate Division concluded that under the circumstances Taylor was entitled to a disciplinary hearing on those charges because the settlement limited the basis for dismissing him without notice and hearing. Accordingly, Taylor could only be dismissed for being intoxicated on the job.

What if an employer tells an employee that he or she will be served with disciplinary charges if he or she does not immediately resign for his or her position? The courts have ruled that where the appointing authority may lawfully file disciplinary charges against an employee, demanding that the individual resign or face disciplinary action does not constitute coercion.

In Rychlick v Coughlin, 63 NY2d 643, a case involving a corrections officer, the Court of Appeals ruled out that threatening to do what the appointing authority has a right to do – in this instance file disciplinary charges against Rychlick if he refused to resign from his position -- did not constitute coercion so as to make Rychlick’s resignation involuntary.

According, if the employee resigns in response to such a demand, the courts deem his or her action to be a voluntary resignation rather than the product of unlawful duress.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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