Friday, July 25, 2014

Termination during a disciplinary probation period

Termination during a disciplinary probation period
2014 NY Slip Op 05347, Appellate Division, Second Department

An employee [Petitioner] filed an Article 78 petition challenging the appointing authority's summarily terminating him from his position.

Earlier Petitioner, a Safety and Security Officer, was served with a notice of discipline alleging that he was guilty of misconduct when, among other things, he failed to properly activate the emergency medical system. Petitioner and the appointing authority then entered into a disciplinary settlement agreement that provided Petitioner would serve a one-year disciplinary evaluation period during which time the appointing authority could terminate his employment should he commit any act that was the same as, or similar to, the acts underlying the charges cited in the notice of discipline.

During the “disciplinary evaluation period” Petitioner was sent a letter of termination in which the appointing authority stated that “Petitioner failed to respond appropriately to an emergency situation.”

The Appellate Division, noting that “The disciplinary settlement agreement entered into by the parties constituted a valid, binding contract,” dismissed Petitioner’s action.

The court explained that under the terms of this agreement, the Petitioner would be permitted to continue his employment notwithstanding the prior notice of discipline and he, in turn, agreed to the termination of his employment during the disciplinary evaluation period for any act that was deemed to be the same as or similar to the acts underlying the charges cited in the notice of discipline.

Petitioner, in agreeing to the terms set out in the disciplinary settlement agreement, absent bad faith on the part of the appointing authority, waived any right he may have had under the operative collective bargaining agreement to a review of the appointing authority’s decision to terminate his employment “for acts the same as or similar to his prior alleged misconduct.”

Finding that the appointing authority’s decision to terminate his employment was rationally based and thus was not arbitrary and capricious, in the absence of Petitioner demonstrating that his termination was carried out in bad faith or illegally accomplished, the Appellate Division sustained Petitioner's being summarily removal from his position

Further, said the court, Petitioner failed to raise an issue of fact sufficient to warrant a hearing as otherwise provided pursuant to §7804(h) of the Civil Practice Law and Rules [CPLR].

In contrast, in Taylor v Cass, 122 A.D.2d 885, a County employee won reinstatement with full retroactive salary and contract benefits because the court determined that he was improperly dismissed while serving a disciplinary probation period. The terms of Taylor’s probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” at any time during his disciplinary probationary period. Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division ruled that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement agreement: intoxication on the job.

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