Violating of the terms of a disciplinary probationary settlement

Violating of the terms of a disciplinary probationary settlement
Pagan v Board of Educ. of the City School Dist. of the City of New York, 56 AD3d 330

The employee, while serving a disciplinary probationary period, was summarily dismissed for violating the terms and conditions of the probationary settlement agreement.

The Appellate Division dismissed former employee’s petition seeking reinstatement.

The court said that the terms of a signed stipulation to which the individual had agreed set out a three-year probationary period that provided as follows:

1. She was subject to automatic termination if she exceeded 10 days per school year in unexcused absences; and

2. She waived her tenure right to a hearing under Education Law § 3020-a.

Accordingly, the individual was a probationary employee with insofar as any unexcused was involved and was required to show bad faith of the part of the Board of Education in order to succeed in her challenge to her dismissal.

Here, said the court, the evidence did not demonstrate that the former employee had been terminated in bad faith. Rather, the evidence established that during the 2005-2006 school year, she had 11 unexcused absences.

The individual argued that she only had 8 unexcused absences because three of her absences were in connection with court appearances. The Appellate Division held that Pagan’s unexcused absences for court appearances “did not satisfy the terms of the stipulation for excused absences.”

NYPPL Comment: Except where a collective bargaining agreement provides otherwise, a public employee required to appear in a judicial or quasi-judicial proceeding pursuant to a subpoena is typically excused from his or her duties without charge to his or her leave credits. In contrast, an individual who is a party appearing in other than his or her official capacity must charge his or her absence from work to his or her leave credits or be place on leave without pay.

As an example, 4 NYCRR 21.9 of the attendance rules for employees of the State as the employer, address “Leave for subpoenaed appearance and jury attendance.” The rule provides that:

(a) Except as provided in subdivision (b) of this section, on proof of the necessity of jury service or appearance as a witness pursuant to subpoena or other order of a court or body, an employee shall be granted a leave of absence with pay with no charge against leave credits; provided, however, that this section shall not apply to any absence by an employee occasioned by such an appearance in an action to which such employee is a party; and

(b) An employee holding a position designated as overtime ineligible may be granted a leave of absence with pay with no charge against leave credits on proof of necessity of jury service or appearance as a witness pursuant to subpoena or other order of a court or body for any period(s) of less than a workweek, regardless of whether such employee is a party to the action.

4 NYCRR 28-1.9 provides for similar absences, with or without pay, by individuals designated Managerial or Confidential within the meaning of Article 14 of the Civil Service Law  [the Taylor Law].


The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08993.htm

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