Supervisor terminated for staging plot to “fool” employees
Keith v NYS Thruway Authority, ;517 N.Y.S.2d 334
What might start as a “practical joke” may result in disciplinary action being taken against a supervisor or an employee if the consequences of such a “joke” adversely affect employees or the agency. A recent ruling by the Appellate Division, illustrates just such a situation.
Bertram Keith, an employee of the NYS Thruway Authority, was overseeing the installation of a new heating system in a toll plaza when some employees were apparently exposed to asbestos. The employees were granted sick leave and Keith reprimanded for “failing to take proper safety precautions.”
Believing that the employees had fabricated their illness, Keith, with the aid of his subordinates, created the appearance that asbestos removal at another location had commenced without appropriate precautions having been taken. In fact, the removal work had not yet been started. His scheme succeeded, producing worker panic and union threats of pulling all toll workers off the job.
As a result, charges of misconduct were filed against Keith alleging he had led employees to believe that their health was in danger and his actions placed the Thruway in a position where its tollbooths would be unmanned. A hearing officer found Keith guilty of the charges and recommended his termination.
When the Authority adopted the findings and recommendation of the hearing officer, Keith appealed, arguing that he should not have been terminated as “nobody was in actual peril.”
The Appellate Division affirmed Keith’s dismissal
The Appellate Division found that there was substantial evidence that Keith orchestrated a plot to simulate asbestos removal and that the deception resulted in worker panic and nearly caused the employees to abandon their workstations.
“Such conduct by a public employee in a position of supervision cannot be countenanced or lightly disregarded” said the Court. The fact that no employee had been exposed to asbestos was of no concern to the court as “the alarming situation created was precisely the result sought by (Keith)” and it was for that action that disciplinary charges were filed.
The Court than refused to modify the penalty stating that “in light of the egregious nature of (Keith’s) actions and resulting hysteria which flowed naturally and foreseeable therefrom, we cannot say that the penalty imposed by the agency was inconsistent with the notions of fairness.”