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Friday, April 26, 2013

Employee’s argument that “mitigating circumstances” should temper imposing the penalty of dismissal from her position rejected


Employee’s argument that “mitigating circumstances” should temper imposing the penalty of dismissal from her position rejected
Thornton v Edwards-Knox Cent. Sch. Dist. Bd. of Educ., 2013 NY Slip Op 02450, Appellate Division, Third Department

A school bus driver [Driver] was promoted to Senior School Bus driver in 2006. She served in that capacity until her position was abolished in 2010 and she was returned to her previous duties as a bus driver.

The appointing authority then discovered that Driver had neglected to complete certain required records during the 2009-2010 school year and ultimately filed disciplinary charges against her pursuant to Civil Service Law §75 setting out nine counts of incompetence and misconduct alleging, among other things, that:

[1] She had failed to properly complete and maintain records required by several state agencies;

[2] She had provided bus drivers with advance notice of purportedly random drug and alcohol testing; and

[3] She had sent a disparaging email about the school district to transportation supervisors in other school districts.

The Hearing Officer found Driver guilty of seven of the nine charges and recommended that she be discharged. The appointing authority adopted the Hearing Officer's findings and recommendation as to the penalty to be imposed and dismissed Driver, who subsequently commenced a CPLR Article 78 proceeding challenging her termination. 

Supreme Court dismissed her petition. The Appellate Division sustained the Supreme Court’s ruling, explaining that in evaluating Driver’s appeal it ‘must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness.”

The Appellate Division first addressed Driver’s return to the position of bus driver after serving as senior bus driver noting that it was not a "demotion," but, rather, occurred as specified in a memorandum of understanding pursuant to which the position of senior bus driver had been created in contrast to being a disciplinary consequence of Driver's misconduct.

The decision notes that while Driver sent the disparaging email after being reinstated to a school bus driver position because she was "upset" about losing the post, most of the remaining charged conduct had occurred prior to the elimination of the position, but appointing authority neither learned about it nor took disciplinary action against Driver until after she had left the Senior School Bus Driver position.

The Appellate Division said that Supreme Court had noted that the charges here did not arise from a single issue or act, nor were the shortcomings limited to matters that did not impact student safety. Among the examples of misconduct described was the Driver “just before leaving the senior bus driver position in late August 2010 [had] discovered that she had ‘forgot[ten],’ for a period of almost a full year, to maintain certain required certifications for the school district's bus drivers” and wrote a note to successor that she placed “in a drawer with the unfinished paperwork and left for a vacation.”

The school district's employees testified that this and Driver's other failures endangered the school district's eligibility for state transportation aid and placed it at risk of fines and other legal and financial consequences and “[m]ost seriously, the safety of the school district's students was jeopardized by Driver's warnings to drivers of the dates of random drug and alcohol tests.”

As to mitigating circumstances that might temper imposing the penalty of dismissal, the Appellate Division said it was “unpersuaded by Driver's argument that, in light of her unblemished disciplinary record as a bus driver, she should not be terminated for her offenses involving supervisory and administrative responsibilities, as these are not part of her work as a bus driver” and found that the Driver's termination was neither disproportionate to her misconduct nor to the risk of harm it posed to the school district.

The decision is posted on the Internet at:


Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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