Employee placed on administrative leave without pay after failing to report to work
2013 NY Slip Op 07183, Appellate Division, Second Department
Employee challenged Employer’s placing her on “administrative leave without pay,” contending that Employer had ”wrongfully suspended her without pay for a period exceeding 30 days in violation of Civil Service Law §75(3).” Employee had been served with disciplinary charges pursuant to §75.
Supreme Court dismissed Employee’s Article 78 petition; the Appellate Division affirmed the lower court’s ruling.
The Appellate Division noted that as the issue “under review” – Employee’s suspension without allegedly in violation of Civil Service Law §75(3), had not been made as a result of a quasi-judicial evidentiary hearing it would review the determination under the standard set forth in CPLR 7803(3) and consider only “whether the determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion.”
Although Employee argued that suspension without pay was unlawful to the extent that it exceeded a suspension for 30-days without pay permitted pursuant to §75(3), the Appellate Division ruled that Employee had not been suspended without pay pending the hearing and determination of charges of incompetency or misconduct within the meaning of 75(3).
Rather, explained the court, Employee had “failed to report to work,” whereupon she was placed on administrative leave without pay pending her return to work
Accordingly, the Appellate Division found that Employer had not violated Civil Service Law §75(3) and thus its determination “was not made in violation of lawful procedure.”
The decision is posted on the Internet at:http://www.nycourts.gov/reporter/3dseries/2013/2013_07183.htm