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March 25, 2011

Refusal to accept shift reassignment results in employee's dismissal for "unauthorized absence"

Refusal to accept shift reassignment results in employee's dismissal for "unauthorized absence"
Kennedy v City of New York, 270 AD2d 93

The Kennedy decision demonstrates the importance of the following the principle “obey now; grieve later.”* In Kennedy’s case, her failure to honor that principle led to a disastrous results.

Stephanie Kennedy, an untenured employee in the noncompetitive class, was involuntarily reassigned to the night shift. She filed a grievance contending that a less senior employee should have been assigned to the night shift and refused to report to her assignment on the night shift while her grievance was pending.** As a result, she was terminated from her position.

Kennedy sued, alleging that her dismissal was made in bad faith because she was involuntarily reassigned to another shift without having been given a reasonable opportunity to arrange for childcare. The Appellate Division ruled that Kennedy’s termination was not made in bad faith.

The court pointed out that Kennedy presented no evidence that she had sought “an accommodation with respect to the transfer*** while she tried to arrange for childcare or invoked the hardship exception provisions of the collective bargaining agreement.”

The problem, said the court, was that Kennedy absented herself from work without permission while she pursued her unsuccessful grievance based on her claim that other, more junior employees should have been made to work the night shift. This unauthorized absence neutralized any inference of bad faith on the part of the appointing authority when it discharged her.

* However, there are exceptions to this general rule such as where complying with the employer’s directive would involve an unlawful act or expose the individual or others to bodily harm.

* Kennedy’s grievance was ultimately denied.

*** The court’s decision characterized Kennedy’s change to the night shift as a transfer. It would be better to have described it as a reassignment. Transfers within the meaning of the Civil Service Law involve a movement of a individual under the jurisdiction of one appointing authority to another; a reassignment of an individual involves his or her change from one position to a different position under the jurisdiction of the same appointing authority.
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