October 05, 2020

Former employee's application seeking the removal of a "problem code" from his personnel file rejected

Supreme Court dismissed an Article 78 petition filed by a former employee [Plaintiff] of the New York City Department of Education [DOE] challenging its placement of a "problem code" in Plaintiff's employment file and its refusal of his request to begin an "employment investigation" to remove the code. 

The Appellate Division unanimously affirmed the Supreme Court's dismissal of Plaintiff's petition.

Citing  Matter of Pepin v New York City Dept. of Educ., 148 AD3d 443, the Appellate Division held that DOE:

1. Was not prohibited from considering the Petitioner's service during his earlier probationary period in assessing his eligibility for employment; and

2. The assignment of a "problem code"* based upon the discontinuance of Plaintiff's earlier probationary employment was neither arbitrary nor capricious.

Further, opined the Appellate Division, absent a nomination for employment Plaintiff "lacks entitlement to an employment investigation to remove the code."

* In Pepin v New York City Dept. of Education, 45 Misc 3d 1221(A), DOE contended that it did not maintain "any list of persons ineligible for employment" with DOE and told Supreme Court it used "internal codes based on a past employee's employment record to reflect the reason the employee left [DOE's] service." 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05139.htm



 

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