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June 24, 2013

An employee’s disability will not excuse his or her misconduct

An employee’s disability will not excuse his or her misconduct
2013 NY Slip Op 04703, Appellate Division, First Department

The employee [Employee] was served with disciplinary charges alleging misconduct. His defense: his conduct was involuntary because it was the result of illnesses, Tourette's Syndrome and an obsessive-compulsive disorder, from which he suffers, and thus does not constitute misconduct.

A Judicial Hearing Officer (JHO) found Employee guilty and that his misconduct was only partially attributable to these disorders. Based on the JHO’s findings, the appointing authority dismissed Employee from his position.

The Appellate Division, finding that “substantial evidence supports [the agency’s] determination that [Employee] engaged in the misconduct alleged, dismissed Employee’s appeal. The court said that Employee’s argument that his conduct “was involuntary because it was the result of illnesses …  and therefore does not constitute misconduct is unavailing.”

Noting that the JHO found that Employee's conduct was only partially attributable to the disorders he claimed to suffer, the Appellate Division said that “the law does not immunize disabled employees from discipline or discharge for incidents of misconduct in the workplace,” citing Hazen v Hill Bettz and Nash, 92 AD3d 162, leave to appeal denied, 19 NY3d 812.

As to the penalty imposed, dismissal from his position, the Appellate Division, citing Pell v Board of Education, 34 NY2d 222, held that under the circumstances, the penalty of termination is not "so disproportionate as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04703.htm

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NYPPL Blogger 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.
New York Public Personnel Law. Email: publications@nycap.rr.com