Monday, March 28, 2016

Name clearing hearings


Name clearing hearings
Chang v Department of Educ. of the City of New York, 2016 NY Slip Op 02018, Appellate Division, First Department

The New York City Department of Education [Department] terminated Tzefang Frances Chang’s contract as a bilingual speech pathologist. Chang brought an Article 78 action challenging the Department’s action.

Supreme Court dismissed Chang’s petition after finding that the agreement between the Department and Chang gave the Department “the unconditional right to terminate the contract without cause and that such contract termination clauses are enforceable.”*In addition, the court said that the Department was not required to accept Chang's claims concerning the events that triggered the Department’s action. The Appellate Division sustained the lower court’s ruling.

Another element in this action concerned Chang’s demand for a “name-clearing hearing.” The Appellate Division held that Chang was not entitled to a name-clearing hearing as she presented no evidence to refute the statements of the Department’s Director of Employee Relations that “the code” placed on Chang's personnel file was for internal use only, and therefore she failed to show a likelihood of public dissemination of the material she alleged was “stigmatizing.”

In Swinton v Safir, 93 NY2d 758, the Court of Appeals held that with respect to an employer providing a former employee with a “name clearing hearing,” the material in the individual’s personnel records objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” Further, the individual seeking such a hearing carries the burden of proof and must show the “stigmatizing nature” of the information and its publication to the public.

Courts have held that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to the individual and, or, to agency administrators “having a right to know” does not constitute a public disclosure of such information and thus a name-clearing hearing" is not required because of such intra-agency communications.

In any event, a name clearing hearing serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by his or her former employer. Prevailing at a name-clearing hearing does not entitle the individual to reinstatement to his or her former position.

* Presumably an employer’s “unconditional right” to terminate a contract employee would not extend to insulating the employer from liability if it terminated the individual for a constitutionally impermissible reason or purpose.

The decision is posted on the Internet at:
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