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August 06, 2013

A counseling memoranda that includes more than “job related feedback” may constitute disciplinary action
12 Misc 3d 1197(A)

An employee was given a written “counseling memorandum” following an investigation of a complaint alleging sexual harassment filed against him by one of his subordinates.

The counseling memorandum, in part, issued by the appointing authority stated:

This Memorandum serves as a written counseling based on the Sexual Harassment complaint that was filed and investigated. You will be required to participate in Supervisory Training as well as Sexual Harassment Prevention Training in the near future.

A “counseling memorandum” issued to a permanent employee typically is not considered disciplinary action requiring “notice and hearing.” In this instance, however, the court ruled that the counseling memorandum given to the employee did, in fact, constitute a disciplinary action taken against him and thus was subject to the disciplinary grievance procedures set out in a collective bargaining agreement [CBA]. 

While the CBA specifically provided that “counseling is not discipline,” the court said that the counseling memorandum issued to Harper by his employer also requires that he attend Supervisory Training and Sexual Harassment Prevention Training,. This additional requirement extended beyond the mere "job-related feedback" referred to in the CBA and thus constituted disciplinary action within the meaning of the CBA.


Accordingly, the employee was entitled to administrative due process in the form of a notice of discipline and a hearing.

The decision is posted on the Internet at:

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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.
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