Employer’s failure to provide disciplinary hearing to a temporary employee after having initiated disciplinary action an abuse of discretion

Employer’s failure to provide disciplinary hearing to a temporary employee after having initiated disciplinary action an abuse of discretion
Matter of Kaefer v New York State Off. of Parks Recreation & Historical Preserv., 2010 NY Slip Op 51503(U), Decided on July 16, 2010, Supreme Court, Nassau County, Judge Ute Wolff Lally, [Not selected for publication in the Official Reports]

Robert Kaefer had been employed as a “seasonal temporary” lifeguard for 18 years* by Jones Beach State Park [Parks].

Returning from an absence following surgery performed by a Dr. Halpern, Kaefer was told that he needed a doctor's note before returning to work. As Dr. Halpern was unavailable, Kaefer handed in a false doctor's note allegedly written by a Dr. Persaud, which he had obtained with the help of another lifeguard, James Green.** Subsequently Kaefer obtained an appropriate doctor’s note from Dr. Halpern.

Dr. Persaud's note, however, had raised some suspicion and Kaefer was told to provide evidence verifying its accuracy. Kaefer, in response, submitted “another bogus note from Dr. Persaud.”

Parks allowed Kaefer to continue serving as a lifeguard for the rest of the swim season.***

Thereafter Susan Guliani, Director of Jones Beach State Park, notified Kaefer to appear for a Step 1 disciplinary hearing concerning the first bogus note -- the first formal step in the process taking disciplinary action against a lifeguard. The hearing, however, was adjourned to but prior to the rescheduled date Kaefer received a letter advising him that the step 1 hearing "has been postponed and will be rescheduled at a future date to be determined".

No notification of a rescheduled or cancelled Step 1 hearing was ever sent to Kaefer.

Ultimately Kaefer was refused reemployment as a lifeguard and he filed an Article 78 petition seeking a court order setting aside Parks decision banning from serving as a lifeguard, contending that the decision was arbitrary and capricious because:

1. Parks failed to adhere to its own policies and procedures; and

2. Parks imposed a different penalty than it has applied its prior determinations on essentially the same alleged acts of misconduct by barring him from employment as a life guard.

Judge Lally rejected Parks’ argument that Kaefer’s petition should be dismissed because he had “failed to exhaust his administrative remedies because he did not inquire into and/or request to have the Step 1 hearing rescheduled," holding that the duty of providing for the rescheduling and notifying Kaefer of such a hearing was Parks'.

In contrast, Judge Lally ruled that Kaefer had the burden of proving that his punishment — a lifetime bar from employment as a lifeguard -- was so disparate from the treatment accorded to similarly situated lifeguards, that it was arbitrary and capricious.

In this regard, said the court, Kaefer failed to meet his burden as, except for James Green, Kaefer was unable to point to any lifeguard who was found guilty of submitting a bogus doctor's note. Further, Judge Lally said that he would not substitute his judgment for that of Parks, finding that there was no abuse of discretion as a matter of law in Parks’ treatment of Kaefer compared to its treatment of other lifeguards convicted of crimes.

As to Parks’ argument that it had merely exercised its discretion to terminate a “seasonal temporary” lifeguard pursuant to its authority to do so "for any reason without prior notice," Judge Lally ruled that it could not now rely on such discretion to excuse its failure to follow through with the disciplinary procedure it earlier initiated. In the words of the court, “Having invoked its authority [to discipline Parks] was obliged to comply with it. [Parks] scheduled, rescheduled and then canceling the rescheduled hearing with a promise to provide a new date."

In effect, "once initiated, [Parks] was required to complete the disciplinary process in accordance with the provisions set out in the collective bargaining agreement and by failing to do so it violated its own policies and procedures, which deprived Kaefer of any opportunity to explain his action and/or to plead his case."

In determining the appropriate redress to be given Kaefer to cure Parks’ “abuse of discretion in violating its policies and procedures,” Judge Lally said that he must consider the particular circumstances of Kaefer’s employment.

The court explained that although hired for numerous seasons, Kaefer consistently had been an employee for a fixed term for each season and he had no right to be rehired. However, in barring Kaefer from “taking the new hire test without having afforded him a Step 1 hearing,” Parks had, essentially, made a disciplinary decision without giving Kaefer the benefit of such a hearing.

Accordingly, Judge Lally directed Parks “to provide to [Kaefer] the hearings he is entitled to” and to permit him to take “the new hire test unless and until a determination after the appropriate hearings ban him from such service for life.”

Significantly, the court, noting that Parks had “wrongfully prohibited” Kaefer from taking the new hire tests, commented that “there is no certitude that [Kaefer] would have passed same or that an opening existed.” Accordingly, Judge Lally declined to award Kaefer “lost wages.”

In contrast, however, as the prevailing party, the court said that Kaefer was entitled to attorney fees pursuant to the New York State Equal Access to Justice Act (CPLR §8601).

* "Seasonal Appointment Letters" sent to Kaefer stated that "You should understand, however, that your employment relationship with the Office of Parks, Recreation & Historic Preservation is only temporary. It may be terminated at any time, either by you or by the agency, for any reason and without prior notice...."

** James Green, Kaefer's co-conspirator in obtaining the bogus doctor's notes, had agreed as part of a plea bargain to a lifetime ban of employment as a lifeguard at Parks.

*** Subsequently Kaefer was charged by the Nassau County District Attorney with a felony and plead guilty to a Class A misdemeanor, submitting a false instrument for filing.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51503.htm

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