Monday, January 13, 2014

Penalty imposed for absence from work after employee told “she could not take those days off” - termination from employment


Penalty imposed for absence from work after employee told “she could not take those days off”  - termination from employment
2013 NY Slip Op 07912, Appellate Division, Third Department

The school district was closed from April 11 to 15, 2011 for spring recess. Employee, a special education aide, was approved to be absent on April 19 and 20, 2011 for religious observances. In addition, Employee asked for approval from her principal to April 18 and 21, 2011. By taking time off on April 18 and 21, 2011, Castle would effectively be absent from the classroom for two weeks.

As this absence would involve an extension of an existing school holiday, Employee was told that her request required the approval of the District Superintendent. Ultimately Employee request to absent herself on April 18 and 21 was denied and she was notified "that she could not take those days [off] under any circumstances" and she was specifically told  "[D]on't take sick time…”

 Employee went to the Dominican Republic on April 10 through April 22, 2011. While there, Employee notified the school via email that she was taking April 18 and 21, 2011 off as "family sick" days.

The school district subsequently filed Civil Service Law §75 disciplinary charges against Employee alleging misconduct, insubordination and being absent without permission [AWOL]. The hearing officer found Employee guilty of all of the charges filed against her and recommended that she be terminated from her employment with the school district.

The Board of Education adopted the findings and recommendations of the hearing officer and Employee filed an Article 78 petition challenged the decision to dismiss her from her position.

The Appellate Division said that as Employee’s “primary challenge on review is directed to the propriety of the penalty imposed,” its is to determine "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" i.e., the “Pell standard.”* Further, said the court, “it is not the role of this Court to either "second-guess the administrative agency or substitute its own judgment for the action taken" even if "a lesser penalty may have been more appropriate."

Addressing Employee’s claim that neither the Hearing Officer nor the Board gave due consideration to the mitigating factors present here — namely, hers consistently positive performance evaluations, her lack of a prior disciplinary record, her family's dependence upon her employment as a source of income/health insurance and the fact that she made arrangements for a substitute to cover her classes on the days she elected to be absent, the court said the record reflects that both the hearing officer and the Board considered these factors.

However, said the Appellate Division, "even a long and previously unblemished record does not foreclose dismissal from being considered as an appropriate sanction" for demonstrated misconduct,” citing Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823, “particularly where, as here, an employee openly defies an employer's express directive”

Finding that there was ample evidence to support the finding that Employee’s absence "was a well-planned event taken in direct contravention of a direct order," the court sustained the Board’s imposing the penalty of termination. **

* Pell v Board of Education, 34 NY2d 222

** See, also, Decisions of the Commissioner of Education, Decision 14,280, in which the Commissioner considered disciplinary action taken against and educator alleged to have abused the school district’s leave provisions, posted at: http://www.counsel.nysed.gov/Decisions/volume39/d14280.htm
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The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_07912.htm

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