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Wednesday, July 01, 2015

Expunging materials from an employee’s personnel file



Expunging materials from an employee’s personnel file
2015 NY Slip Op 05257, Appellate Division, First Department

In 2011 a New York City firefighter [Firefighter] and the New York City Fire Department [FDNY] entered into an agreement settling disciplinary charges filed against him.

Firefighter subsequently initiated an Article 78 action in Supreme Court seeking to compel FDNY “to expunge all materials placed in [Firefighter's] personnel file concerning a finding that he violated [FDNY’s] Equal Employment Opportunity policy” or, in the alternative, a court order compelling FDNY to grant Firefighter “a full and fair opportunity to challenge the allegations that he violated the policy.”

Supreme Court dismissed Firefighter’s petition, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that Firefighter had waived any rights to the relief he now sought, the expungement of the certain materials from his personnel file or an opportunity to be heard on the allegations, when he and FDNY entered into the agreement settling the disciplinary charges that had been filed against him. Further, said the Appellate Division, Firefighter’s argument that the waiver provisions set out in the settlement agreement were inapplicable was improperly raised for the first time in a reply brief submitted by Firefighter.

Although Firefighter cited D’Angelo v Coppetta, 19 NY3d 663, in support of his claims for relief, the Appellate Division noted that his reliance on D’Angelo was misplaced “as there was no waiver [issue] in that case.” In D’Angelo the Court of Appeals concluded that “that the letter issued to [D’Angelo and placed in his file] constitutes a formal reprimand under [New York City’s] Administrative Code §15-113.” The D'Angelo court then ruled that because the appointing authority denied D’Angelo his right to due process by placing the letter in his file without conducting a hearing, “the letter was properly expunged from D’Angelo’s permanent EEO file.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_05257.htm


The 2015 edition of The Discipline Book, a concise guide to disciplinary actions involving public officers and employees in New York State, is now available in two formats - as a paperback print edition and in an electronic [e-book] edition.For more information click on
http://thedisciplinebook.blogspot.com


Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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