Drafting disciplinary charges

Drafting disciplinary charges
Fella v County of Rockland, 297 A.D.2d 813

How important it to properly draft disciplinary charges? According to the Appellate Division, even in situations where discipline may be warranted, the failure to properly word the charges and specifications may be fatal to the appointing authority's attempt to discipline an employee.

According to the court's decision, following an investigation, the Rockland County Director of Employee Rights and Equity Compliance [Director] concluded that a Rockland County employee had created a hostile work environment by promoting a person with whom he was then having a romantic relationship to a vacant position.

As a result of the disciplinary action that followed, the employee was suspended for 30 days without pay for allegedly violating the County's Equal Employment Opportunity Policy [EEOP].

In its decision the Appellate Division noted that the County's EEOP defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which `had the purpose or affect [sic] of unreasonably inter­fering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment.'"

Citing DeCinto v Westchester County Medical Cen­ter, 807 F2d 304, the court indicated that there is no sexual discrimination or harassment involved "where the conduct complained of by the employee involves an isolated act of preferential treatment of another employee due to a romantic, consensual relationship."

The Supreme Court judge commented that while a decision to promote an employee with whom the target of the disciplinary action was having a romantic relationship may constitute poor judgment, it did not constitute a violation of the County's EEOP - the alleged basis for bring the discipli­nary action. As the County failed to establish any violation of its EEOP, the Supreme Court annulled the determination of the Rockland County Executive. The Appellate Division affirmed the ruling.

What lesson can be learned from this ruling?

While the charges and specifications filed against an employee should clearly apprise the individual the alleged "misconduct or incompetence" giving rise to the charge, the specifications should constitute acts or omissions that, if proven to have occurred, would support a finding that the employee was guilty of misconduct or incompetence. In any event, the employer should be certain that it can prove the allegations, whatever they may be, before initiating disciplinary action.

On the opposite end of the spectrum, where a disciplinary action has been "settled" and the penalty imposed includes placing the individual in "disciplinary probation status," the employer must make certain that in the event the employee is dismissed during this disci­plinary probation period, his or her dismissal is based on the individual's failure to meet the requirements set for the probation in the settlement agreement.

Perhaps the leading case illustrating this principle is Taylor v Cass, 505 NYS2d 929. Here a Suffolk County employee won reinstatement with full back salary and benefits as a result of a court finding that he was improperly dismissed while serving the discipli­nary probationary period.

The six-month disciplinary probation period agreed upon by the parties provided that the County could terminate the employee without any hearing if, in the opinion of his superior, the employee's job performance was adversely affected by his being intoxication while at work during his disciplinary probationary period.

The employee, while serving his disciplinary probationary period, was terminated without any hearing for "failing to give a fair day's work" and "sleeping during scheduled working hours."

The Appellate Division ruled that the employee’s dismissal was improper because he was not terminated for the sole reason specified in the disciplinary settlement: intoxication on the job.