A two-month suspension without pay rather than termination ruled the appropriate penalty in view of employee's 29 years of service and her previously unblemished work record
2014 NY Slip Op 04660, Appellate Division, Fourth Department
A senior account clerk-typist [Petitioner] was charged with incompetence and misconduct in the performance of her duties. The hearing officer sustained one of the three specifications of incompetence and one of the two specifications of misconduct and recommended that Petitioner be placed on “an employee improvement plan” in lieu of discipline. The appointing authority adopted the findings of the hearing officer and sustained an additional specification of incompetence. It then imposed the penalty of termination and dismissed the Petitioner.
After reviewing all of the disciplinary charges and specifications filed against the employee, the Appellate Division said that it was “left with two specifications of incompetence, i.e., failure to bill for services in a timely manner and failure to deposit cash and checks in a timely manner.”
The Appellate Division said that the appointing authority acknowledged that Petitioner did not misuse or misappropriate any of the funds at issue, and there was no evidence that the employer had lost revenue or otherwise suffered financial harm as a result of Petitioner's delay in processing invoices or preparing funds for deposit. Further, said the court, the record showed that there were several factors beyond Petitioner's control that contributed to the delays and the appointing authority conceded that there were no rules, regulations, or written policies with respect to the timing of invoices or deposits, and Petitioner's direct supervisor testified that he never directed Petitioner to send out invoices or prepare funds for deposit within a particular period of time.*
The court noted that although there was a six-month period during which Petitioner failed to prepare any invoices, the record reflects that Petitioner was ill and intermittently absent from work during several of those months, that no one performed Petitioner's duties during her absence, and that several of Petitioner's completed invoices were inadvertently deleted by the employer’s informational technology department.
Accordingly, the Appellate Division “unanimously modified on the law” the appointing officer’s determination part of the determination and vacated the penalty of termination imposed by the appointing authority.
The court concluded that the penalty of termination is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness," citing Matter of Pell, 34 NY2d 222. 233; see Johnson, 281 AD2d at 895). It then explained that "[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally.”
In our view, said the Appellate Division, “the penalty of termination is particularly unfair in light of Petitioner's long service to the City and her previously unblemished work record,” noting that prior to the initiation of this disciplinary action Petitioner had worked for the City for 29 years and had never been disciplined, threatened with discipline, or counseled with respect to her job performance.
Under the circumstances, the Appellate Division concluded that "the maximum penalty supported by the record" is a two-month period of suspension without pay.
* The court noted that although there was a six-month period during which Petitioner failed to prepare any invoices, the record reflects that Petitioner was ill and intermittently absent from work during several of those months, that no one performed Petitioner's duties during her absence, and that several of Petitioner's completed invoices were inadvertently deleted by the employer’s informational technology department.
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