An appointing authority is not required to assign an individual to the position he or she desires or prefers

An appointing authority is not required to assign an individual to the position he or she desires or prefers
Webb v City of New York, 2016 NY Slip Op 04307, Appellate Division, First Department

Dawn Webb, a tenured teacher with a 15 year career, did not challenge the findings made in the course of a disciplinary arbitration hearing that she committed forty acts of misconduct, including insubordination, dereliction of duty, and incompetence, over a two-year time period at numerous different schools. Neither did she deny that she ignored the efforts of numerous supervisors and administrators to remedy her pedagogical deficiencies.

Notwithstanding Webb’s contention that she “became demoralized when she was assigned to the absent teacher reserve pool and did not have permanent assignment at one school,” the penalty imposed by the arbitrator was dismissal from her employment.

Webb filed a petition pursuant to CPLR Article 75 seeking a court order vacating the penalty of termination imposed by the arbitrator. Supreme Court dismissed her petition, which ruling was unanimously affirmed by the Appellate Division.

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, the Appellate Division said that “a court must uphold a sanction imposed [following a disciplinary hearing] unless it is so disproportionate to the offense that it shocks the conscience and therefore, constitutes an abuse of discretion.”

In this instance the court concluded that the penalty of termination of Webb’s employment was not unduly harsh or excessive given her failure to conform her behavior to the requirements of the job and her unwillingness to accept assistance or improve her performance.

As to Webb’s claim that her malfeasance or misfeasance in performing her duties were the result of her not having permanent assignment at one school, the Appellate Division observed that the appointing authority was not required to assign her to the position she desired.

Further, said the court, the record reflects that Webb was warned many times that her conduct would result in disciplinary action. Despite these warnings Webb failed to take steps to correct the deficiencies noted by numerous supervisors and administrators.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04307.htm

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