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June 27, 2018

Considering the employee's personnel history is setting a disciplinary penalty


Considering the employee's personnel history is setting a disciplinary penalty
Brizel v City of New York, 2018 NY Slip Op 03755, Appellate Division, First Department

Educator was served with disciplinary charges pursuant to Education Law §3020-a. The Arbitrator found the teacher, who had a 27-year career with the New York City Department of Education, guilty of misconduct and terminating his employment.

The Appellate Division confirmed the arbitration award, noting that the Educator's career, "was not without incident, as evidenced by his 2008 settlement of disciplinary charges." The court then observed that the Arbitrator "properly considered" an earlier settlement of those charges in setting the disiplinary penalty in this instance. In addition the Appellate Division noted that the Educator failed to acknowledge the gravity of his misconduct, continues to deny wrongdoing, and attempted to shift blame to his students.

Considering an employee's personnel history in setting a disciplinary penalty is permitted provided, as the Court of Appeals held in Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470 and Doyle v Ten Broeck, 52 NY2d 625, the individual is advised that this will be done and is given an opportunity to comment on the contents of his or her personnel file.

Further, as the court noted in Shafer v Board of Fire Commr., Selkirk Fire Dist., 107 AD3d 1229, a series of petty offenses by a single individual may have a cumulative impact in the setting of a penalty. In fact, courts have approved the dismissal of an employee for a series of misdeeds that if considered individually would not have been viewed as justifying termination.

In determining the appropriate penalty to be imposed, relevant issues include considering if this is the employee’s first offense of this nature, or is there a pattern of such offenses and had the employee been disciplined or served with disciplinary notice in the past.

In sustaining the Arbitrator's determination as to the penalty to be imposed in this instance, the Appellate Division said that "Under the circumstances presented, the penalty of termination does not shock our sense of fairness," citing Bolt v New York City Department of Education, 30 NY3d 1065.

The decision is posted on the Internet at:

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. 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 posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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