In this appeal to the Appellate Division was asked to review a determination by a appointing authority, [Respondent], that resulted in the termination of a school bus driver, [Plaintiff] after Respondent found Plaintiff guilty of Civil Service Law §75 disciplinary charges alleging that Plaintiff had slapped a special needs student, [SNS], in the course of her attempts to calm him.
The Appellate Division's decision reports that on the day of the incident, the SNS, in addition to other acts, commenced to yell and scream when he was given a book instead of the toy truck that he was accustomed to receiving upon boarding the bus. It was undisputed that SNS ultimately became very aggressive and started to swing his arms at a social worker and punched Plaintiff in her stomach. Petitioner's reaction to the punch was to slap the student on the face with her open hand.*
The Appellate Division commented that Respondent's determination finding Plaintiff guilty of three disciplinary charges was supported by substantial evidence. The court, however, citing the so-called Pell Doctrine,** then concluded that, in light of Respondent's otherwise unblemished disciplinary record during her 20 years of service as a school bus driver, including five years driving special needs students, termination, "absent any other previous progressive disciplinary steps, is so disproportionate to the offense committed as to shock one's sense of fairness."
The court explained that in this instance Plaintiff was confronted by a student who, due to his special needs, lost control of his behavior and was significantly disrupting the other students on the bus, some of whom were also struggling to behave. Further said the court, Plaintiff's "conduct was not premeditated and, under these circumstances, appears to be the result of a momentary lapse of judgment."
In addition, the decision indicates that "there is nothing in [Plaintiff's] employment history to suggest that she will ever engage in similar conduct again" and that the record reflects the fact that "although [Plantiff] had to 'separate or corral' students on occasion, she had never previously made physical contact with a student and was never reprimanded for her actions."
In this 3 to 2 decision, the majority of the Appellate Division panel opined that "[a]lthough termination in these circumstances shocks our sense of fairness, we do not condone [Plaintiff's] behavior, and only conclude that some form of discipline short of termination would be appropriate."
The court then remanded the matter to the Respondent "for the imposition of an appropriate penalty less severe than termination."
* As a result of the incident, Plaintiff had been subjected to criminal charges, which were ultimately dismissed "in furtherance of justice."
** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County
The decision is posted on the Internet at:
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A Reasonable Disciplinary Penalty Under the Circumstances - Determining 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