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November 9, 2010

Summary dismissal during a disciplinary probation period

Summary dismissal during a disciplinary probation period
Williams v NYSOMH, 259 AD2d 623

Disciplinary charges were filed against Henry Williams, an employee of the New York State Office of Mental Health, alleging that he was guilty of excessive absenteeism.

The disciplinary action was settled when Williams agreed to serve a disciplinary probation period during which period he could be terminated “without recourse to Article 33 of the State-CSEA Agreement [a negotiated disciplinary grievance procedure] or any other provision of law.”

Williams was absent from work seven times during the six-month period following the execution of the settlement agreement. The department terminated him and he commenced an Article 78 proceeded seeking reinstatement to his former position. The Appellate Division dismissed Williams’ petition, commenting that “a probationary employee may be terminated without a hearing and without a statement of reasons provided that the termination is not in bad faith, or for unconstitutional or illegal reasons.” Further, the decision notes, Williams had the burden of proving that his dismissal was based on bad faith or unlawful conduct.

However, the specific terms of a disciplinary settlement could prove critical if the employee is terminated for his or her alleged failure to satisfy the terms of his or her disciplinary probation.

In Taylor v Cass, 505 N.Y.S.2d 929, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a disciplinary probation. It seems that under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months.

Taylor, while subject to this probationary period, was terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” He challenged his dismissal and won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

In contrast, a state corrections officer, Tina Ramos, agreed to pay a $1,000 fine and be placed on disciplinary probation for one year in settlement of disciplinary charges filed against her alleging improper behavior while escorting a prisoner. She was subsequently observed carrying her weapon in a hospital examination room in violation of departmental rules. The Appellate Division sustained her termination without a hearing, finding that Ramos had violated the terms of her disciplinary probation (Ramos v Coombs, App Div, 237 AD2d 713).
NYPPL

Public Personnel Law E-books

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