Tuesday, February 09, 2016

Disciplinary penalty imposed, termination, held reasonable under the circumstances


Disciplinary penalty imposed, termination, held reasonable under the circumstances
Weinstein v New York State Workers' Compensation Bd., 2016 NY Slip Op 00505, Appellate Division, Second Department

Robert S. Weinstein, a Workers' Compensation Law Judge, was served with a notice of discipline by which the respondent sought to terminate his employment based on three charges of insubordination, two charges of misconduct/incompetence, and three charges of misconduct. The arbitrator found that the Workers’ Compensation Board [Board] had proven seven out of the eight charges and that the penalty of termination was proper.

Weinstein filed an Article 75 petition seeking to vacate the arbitration award. Supreme Court granted the Board's motion to dismiss the petition and, in effect, denied Weinstein’s petition and dismissed the proceeding. Weinstein appealed, contending the penalty imposed, termination, “was unduly harsh and disproportionate.”

The Appellate Division observed that although “the excessiveness of a penalty is not one of the enumerated bases upon which an arbitration award may be vacated,” where an arbitration is compulsory, as is here the case, judicial review under CPLR Article 75 requires that the award be in accord with due process. Citing Russo v NYC Department of Education, 25 NY3d 946, the court rejected the Board’s contention to the contrary and held that “the excessiveness of a penalty is a basis upon which an arbitration award may be vacated.

The court ruled that in this instance “the penalty of termination was not so disproportionate to the offenses as to be shocking to one's sense of fairness, citing the so-called Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, explaining that the arbitrator rationally determined, based on the evidence presented, that Weinstein was insubordinate and failed to complete his assignments in a timely manner, despite several remedial measures undertaken by his employer, and dismissed his appeal.

The decision is posed on the Internet at:
___________________
A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York Statecourt and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
___________________
  

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/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.