New York Public Personnel Law: Employees disciplined for insubordination after failing to report co-worker's misbehavior

August 04, 2011

Employees disciplined for insubordination after failing to report co-worker's misbehavior

Employees disciplined for insubordination after failing to report co-worker's misbehavior

Hoey v PERB, 284 AD2d 633

Teacher aides employed by the Cayuga-Onondaga Board of Cooperative Educational Services [BOCES] were given specific instructions to report any concerns about classroom matters -- they were immediately to bring them to the attention of the supervisor of special education or the school principal.

According to the decision, the aides becoming aware that a teacher had engaged in bizarre and inappropriate behavior of a sexual nature with one of the students. About a month later, they reported the teacher's suspected conduct to one of their union representatives rather than BOCES's management. Two days later the union representative told BOCES of the aides' report.

Cheryle Hoey and a number of other aides were terminated after being found guilty of insubordination -- failing to comply with directives given to them directing them to report "concerns involving classroom matters." Hoey and the others challenged their dismissal, contending that they had been disciplined because of their engaging in protected union activities and filed improper practice charges with PERB.

PERB rejected the complaint and held that BOCES had not engaged in any improper practice in firing the aides. The Appellate Division sustained PERB's determination. The court ruled that the evidence amply supported PERB's findings that the aides had not been terminated for engaging in a protected activity but, rather, for failing to follow a supervisor's directive and jeopardizing the safety of a child under their supervision by failing to timely report suspected child abuse.

Although PERB agreed that the aides had engaged in a protected activity when they consulted with representatives of their union, it further determined that BOCES was not improperly motivated but, rather, had legitimate business and educational reasons for terminating Hoey and the other aides.

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NYPPL Blogger 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.