April 10, 2019

Employee terminated "for failing to maintain a minimum qualification of her employment"


An employee [Petitioner] of the Office for Persons with Developmental Disabilities [OPWDD] was suspended from her employment without pay and thereafter charged with six charges alleging misconduct and, or, incompetence related to alleged criminal conduct. Petitioner, was subsequently indicted on a number of criminal charges related to her employment with OPWDD and notified by the Office of the Medicaid Inspector General  that, "based on the pendency of felony charges against her," she was excluded from participation in the State's Medicaid program."

Notified by OPWDD that her employment was subject to termination, Petitioner failed to attend two scheduled meetings for the purpose providing with an opportunity to present documentary evidence showing that she "was not an excluded provider" whereupon OPWDD wrote to Petitioner that her employment was terminated as of close of business on November 1, 2016. On October 26, 2016, following a jury trial, Petitioner was acquitted of all criminal charges for which she had been indicted. Notwithstanding her acquittal of the criminal charges, OPWDD terminated Petitioner effective November 1, 2016

In February 2017 Petitioner initiated a CPLR Article 78 proceeding against OPWDD seeking, among other things, reinstatement to her former position, contending that her termination was made without administrative due process and "was otherwise arbitrary and capricious." Supreme Court dismissed her petition and Petitioner appealed.

The Appellate Division affirmed Supreme Courts ruling, rejecting her contention that she was denied due process when OPWDD failed to follow the disciplinary procedures mandated by the Civil Service Law Section 75 and set forth in the relevant collective bargaining agreement.

The court explained that Petitioner not been terminated from employment by OPWDD based upon any allegation of incompetence or misconduct but was terminated "for failing to maintain a minimum qualification of her employment" - continued eligibility for the Medicaid program -- and, therefore, "the disciplinary procedures mandated by the Civil Service Law and the collective bargaining agreement were not applicable in this instance."

Further, opined the Appellate Division, it saw no violation of Executive Law §296, New York State's Human Rights Law, as Petitioner had been terminated for failing to possess a minimum qualification of employment that was "expressly set forth in OPWDD's employee handbook, which indicates that an offer of employment may not be made until a potential candidate has been screened against both the state and federal databases of Medicaid excluded individuals."* This requirement was also set out in a state regulation, a special advisory bulletin and during a mandatory annual Medicaid compliance job training for employees, and was the subject of quarterly screenings to ensure that such employees maintained their eligibility in the Medicaid program.

Accordingly, the Appellate Division rule that Petitioner received all the due process to which she was entitled as "it is not disputed that she received notice of the charge that led to her termination and was provided an adequate opportunity to contest same." Further, said the court, the fact the Petition allegedly regained her eligibility to participate in the Medicaid program based on her subsequent acquittal of the criminal charges brought against her "did not render irrational OPWDD's determination to terminate [Petitioner's] employment in the first instance" and affirmed Supreme Court's dismissal of her Article 78 petition.

*This requirement "was also set forth in a state regulation, a special advisory bulletin and a mandatory annual Medicaid compliance job training for employees, and was the subject of quarterly screenings to ensure that such employees maintained their eligibility in the Medicaid program."

The decision is posted on the Internet at:

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State. For more information click on http://booklocker.com/books/5215.html

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