December 06, 2013

Employee dismissed notwithstanding having earlier resigned from the position and recorded as having been terminated from the position

Employee dismissed notwithstanding having earlier resigned from the position and recorded as having been  terminated from the position
2013 NY Slip Op 08022, Appellate Division, First Department

Judge Michael D. Stallman, Supreme Court, New York County, denied the petition filed by Individual, a former probationary employee, seeking to annul employer’s decision terminating Individual’s employment as a probationer and so noting the individual's personnel file notwithstanding Individual's having earlier resigned from the position.

The Appellate Division affirmed Judge Stallman’s decision, explaining that “As a probationary employee, [Individual] was subject to termination "at any time and for any reason, unless [Individual] establishe[d] that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith." Here, said the court, Individual failed to meet her burden of proof of demonstrating such an impermissible reason for her termination.

Individual had also contended that the employer had terminated her employment occurred after the effective date of her resignation which demonstrated “bad faith” of the part of the employer. The Appellate Division disagreed, noting that despite her resignation, there was still a possibility that Individual could return to work in the future, and thus her resignation was not irrevocable, citing Folta v Sobol, 210 AD2d 857.

In Folta an employee resigned while the adjudication of disciplinary charges filed against the employee pursuant to Education Law §3020-a were pending. The Hearing Panel, nevertheless, proceeded to render its decision, finding the employee guilty and recommending that he be dismissed from his position, which finding and recommendation was adopted by the appointing authority and made part of the individual's personnel file.

The Folta court held that as the individual’s resignation was not irrevocable, it was possible that under the terms of the then applicable collective bargaining agreement and "Chancellor's Regulation §205(25)" the individual could, subject to the approval of the Chancellor, withdraw his resignation and apply for reemployment.

The existence of such a possibility, said the court, provides a valid reason for allowing an Education Law §3020-a hearing to proceed and placing the ultimate decision in the individual's personnel file,

The decision is posted on the Internet at: