Article 23-A of New York State's Correction Law 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"* where the conviction "preceded such employment."**
Local 100, Transport Workers Union of America brought an action pursuant to CPLR Article 75 seeking to vacate an arbitration award that terminated a New York City Transit Authority [Authority] employee [Plaintiff***] and for a court order reinstating Plaintiff to his former position with full back pay and awarding Plaintiff costs and attorney's fees. Supreme Court denied Plaintiff's petition and dismissed the proceeding. Plaintiff appealed the court's decision.
The Appellate Division sustained the Supreme Court determination explaining:
1. Plaintiff's termination by the Authority was based on conduct that, if proven in court, would have constituted a felony and was not against public policy;
2. Although Correction Law Article 23-A provides, in pertinent part, 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" where the conviction "preceded such employment," in this instance Plaintiff's conviction did not precede his employment but occurred following his employment and was, therefore, not within the ambit of Article 23-A.
Addressing Plaintiff's request for reinstatement, the court held that denial of the request was not arbitrary and capricious as the governing regulations provide that an agency "may consider such application" but is not required to do so, and approval of such an application is made at the discretion of the appointing authority.
Citing 55 RCNY Appendix A §6.2.6[a]-[b], the Appellate Division opined that "[i]t was not irrational for [the Authority] to conclude that in seeking reinstatement, [Plaintiff] merely sought to relitigate issues" earlier considered and decided by a neutral arbitrator in the course of a "grievance proceeding pursuant to a collective bargaining agreement" that resulted in Plaintiff's termination by the Authority.
* Correction Law §752, Unfair discrimination against persons previously convicted of one or more criminal offenses prohibited.
** Correction Law §751 applies to any person seeking a license or employment at any public or private employer who has previously been convicted of one or more criminal offenses in New York State or in any other jurisdiction.
*** Plaintiff was initially employed by the Authority in 2008. Ten years later Petitioner was arrested and ultimately plead guilty to a violation of 18 U.S.C. §641. His sentence: one-year probation and 80 hours of community service.
The decision is posted on the Internet at: