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February 19, 2014

Employee terminated for deficient performance


Employee terminated for deficient performance
2013 NY Slip Op 08012, Appellate Division, First Department

The Appellate Division confirmed the ruling of the State of New York Industrial Board of Appeals (IBA) which, after a hearing, determined that New York State Department of Labor (DOL) acted reasonably in concluding that the New York City Board of Education (BOE) did not terminate an individual's [Petitioner] employment in retaliation for his submitting complaints about health and safety pursuant to the Public Employee Safety and Health Act. *

The court said that substantial evidence in the record supports IBA's determination that DOL acted reasonably in concluding that Petitioner's complaints regarding health and safety were not a motivating factor in his dismissal from his position as a “Homebound Program”** teacher.

Although there is evidence that Petitioner's supervisor “purportedly told a DOL investigator in 1993 that [Petitioner] was terminated from his position because he made health and safety complaints,” the Appellate Division said that the evidence underlying DOL's conclusion that BOE did not terminate Petitioner because of his filing complaints pursuant to the Pubic Employee Safety and Health Act included extensive evidence of deficient performance by Petitioner.

The Appellate Division also noted that the supervisor who allegedly indicated a discriminatory motive was not the ultimate decision-maker, and the record shows that BOE immediately offered Petitioner another tenured track position after terminating his employment in the Homebound Program.

The court commented that the same result would obtain whether the matter was analyzed pursuant to the traditional framework set forth in McDonnell Douglas Corp. v Green, 411 US 792, or under a "mixed motive" analysis, citing Melman v Montefiore Medical Center, 93 AD3d 107.

* New York State Labor Law §27-a, “Safety and health standards for public employees”

** Homebound instruction - A resident of the public school district enrolled in a public or nonpublic school is eligible for this service if qualified. Home instruction is a form of tutorial services, provided to public or nonpublic students, by the public school district of residence.  These services are provided in accordance with the Commissioner of Education's Regulations [see 8 NYCRR 175.21] to students who are unable to attend their public or nonpublic school because of physical, mental, or emotional illness or injury.

The decision is posted on the Internet at:
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