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February 28, 2020

Termination of a public employee based on conduct that, if proven in a court of law, would have constituted a felony.


Supreme Court denied the petition to annul an arbitration award that sustained the employee's [Petitioner] termination from employment and dismissed the proceeding brought pursuant to CPLR Article 75. The Appellate Division sustained the lower court's determination.


The termination of the Petitioner was based on conduct that, if proven in court, would have constituted a felony but was not against public policy. The Appellate Division explained that although Correction Law Article 23-A provides that "no employment . . . held by an individual . . . shall be . . . acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses. here observed the court, the conviction at issue occurred during Petitioner's employment and was not within the ambit of Article 23-A of the Correction Law.

Further, said the court, New York City's Human Rights Law (NYCHRL)* provides that it an unlawful discriminatory practice to "take adverse action against any employee by reason of such ... employee having been convicted of one or more criminal offenses" as that provision only applies in situations were the adverse employment actions based on arrests or criminal accusations are "in violation of subdivision 16 of section 296 [of the Correction Law]. Nor should an individual suffer adverse consequences "merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law." Significantly, the Appellate Division noted that the Petitioner had pled guilty to the offending acts and thus they were more than accusations.

Citing Peckham v Calogero, 12 NY3d 424, the Appellate Division concluding that the denial of Petitioner's request for reinstatement to his employment was not arbitrary and capricious as under the governing regulations** the appointing authority "may consider such application but is not required to do so, and any approval thereof is discretionary."

The court then opined "It was not irrational for [the appointing authority] to conclude that in seeking reinstatement [P]etitioner merely sought to relitigate issues presented approximately six weeks before his reinstatement request, and decided three weeks beforehand by a neutral arbitrator in the grievance proceeding pursuant to a collective bargaining agreement, which resulted in his termination."

* See Administrative Code of City of NY §8-107[10][a].

** Personnel Rules and Regulations of City of NY [55 RCNY Appendix A] §6.2.6[a]-[b].

The decision is posted on the Internet at:

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