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November 28, 2011

Unblemished record mitigates discipline penalty

Unblemished record mitigates discipline penalty
Matter of Gailband, 78 A.D.2d 853

The New York City Housing Authority, dismissed an employee and stated “in no uncertain terms, its view of the seriousness of the (employee’s) conduct.”

The Appellate Division, however, ruled that “under the totality of the circumstances at bar, including an unblemished record of more than 15 years duration, the penalty of dismissal was grossly disproportionate to the nature of (the employee’s) misconduct so as to be shocking to one’s sense of fairness.

The court then went on to indicate that it would ordinarily remand the case to the agency for appropriate reconsideration, but as the Authority had strongly and unequivocally condemned the conduct, and as any lesser penalty would increase the Authority’s potential liability for back pay, it would fix the penalty to be imposed.

The Appellate Division ordered the reinstatement of the employee with back pay for absence in excess of three months (including the 30 day suspension period imposed by the Authority in accordance with Section 75 of the Civil Service Law) less unemployment benefits, if any, and any amount [the employee] earned while “dismissed”.

Short v. Nassau County Civil Service Commission, 59 AD2d 157 sets forth some guidelines to be followed in cases such as this.

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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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