A New York City Transit Authority [NYCTA] bus driver [Petitioner] was served with disciplinary charges alleging he had engaged in lewd activity in public. A disciplinary hearing officer found Petitioner guilty of the charges and recommended that Petitioner be terminated. The appointing authority adopted the findings and penalty recommended by the arbitrator and dismissed Petitioner from his position.
Petitioner appealed the penalty imposed by NYCTA but Supreme Court denied Petitioner's motion to vacate the arbitration award. Petitioner appealed the Supreme Court's ruling. and subsequently the Appellate Division vacated the penalty portion of the arbitration award, remanding the matter to the arbitrator for the arbitrator to consider imposing a different penalty.* The Appellate Division explained that the time that incident at issue occurred:
1. Petitioner had been a NYCTA bus driver for 15 years;**
2. Had received consistently positive performance evaluations; and
3. Had never been disciplined.
However, during the second arbitration hearing, held upon remand, Petitioner testified that he had recently pleaded guilty to reckless driving in Ohio, which offense the arbitrator considered in conjunction with the original offense and imposed the penalty of demoting Petitioner to the position of cleaner.
Again Petitioner appealed, challenging the "different penalty" imposed by the arbitrator.
The Appellate Division opined that the revised penalty imposed by the arbitrator was proper and there was sufficient proof to justify the award, which was consistent with the court's earlier directive with respect to the arbitrator considering imposing a lesser penalty on Petitioner.
Again Petitioner appealed, challenging the "different penalty" imposed by the arbitrator.
The Appellate Division opined that the revised penalty imposed by the arbitrator was proper and there was sufficient proof to justify the award, which was consistent with the court's earlier directive with respect to the arbitrator considering imposing a lesser penalty on Petitioner.
* See Matter of Fernandez v New York City Tr. Auth., 120 AD3d 407.
** The Appellate Division noted Solis v Department of Educ. of City of N.Y., 30 A.D.3d 532, in which that court found that termination unwarranted for petitioner with "otherwise unblemished 12-year record."
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_09087.htm
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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.
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