December 23, 2020

Employee terminated for continuing to address disrespectful written statements to coworkers after being told to discontinue such misconduct

A tenured faculty member [Plaintiff], after having several "guidance memoranda" placed in his personnel file concerning disrespectful written statements sent to coworkers, was served with disciplinary charges alleging similar misconduct. The arbitrator, finding that Plaintiff's conduct was unbecoming of a member of the college's faculty, imposed the penalty of a letter of reprimand to be placed in the Plaintiff's personnel file.*

Subsequently Plaintiff was denied promotion to full professor by a select committee and sent an email to committee members stating, in part, "I damn you all to hell-may your bodies and souls burn in eternal fires." 

The college filed disciplinary charges on the Plaintiff, alleging he exhibited "conduct unbecoming a staff member" and proposed his termination as the penalty to be imposed. After an administrative disciplinary hearing, the arbitrator found Plaintiff guilty of the charge and determined that the College had just cause to terminate Plaintiff's employment.

Supreme Court [1] denied the petition filed by Plaintiff  pursuant to CPLR Article 75 seeking to vacate the arbitrator's award and the penalty imposed, termination of Plaintiff's employment, and [2] granted the College's cross motion to dismiss Plaintiff's petition. 

Plaintiff appealed but the Appellate Division unanimously affirmed the Supreme Court's decision.

The Appellate Division sustained the arbitration award and penalty imposed, citing Hackett v Milbank, Tweed, Hadley and McCloy, 86 NY2d 146.

The court explained that an arbitration award may be vacated "only if the court finds that the party's rights were prejudiced by corruption, fraud or misconduct in procuring the award or the partiality of an arbitrator appointed as a neutral; where the arbitrator exceeded his or her power or so imperfectly executed it that a final and definite award was not made; or where the arbitrator failed to follow the procedure set forth in CPLR 7511(b)(1). 

Further, said the court, an arbitration award should not be vacated based on errors of law and fact nor should the court assume the role of overseers to make the award conform to the court's sense of justice.

Here, opined the Appellate Division, "the arbitrator's findings are supported by the record and are not arbitrary, capricious or irrational." 

Addressing the Plaintiff's assertion that the arbitrator was biased against him, the Appellate Division said that Plaintiff's allegation "was not supported by any evidence in the record."

As to the penalty imposed on Plaintiff, dismissal from his position, the Appellate Division acknowledged that "the penalty imposed, which may seem harsh given [Plaintiff's] lengthy and satisfactory service at the college" but, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, opined that it "was not so disproportionate to the offense as to shock the conscience."

Conceding that Plaintiff acknowledged that his email to the faculty committee members was an error in judgment, the Appellate Division, noting that Plaintiff had "received numerous prior warnings about disrespectful and intemperate writings to staff and coworkers," found that the arbitrator "reasonably concluded that a more lenient penalty was unlikely to change [Petitioner's] unprofessional conduct."

* The letter of reprimand [1] noted the findings of the arbitrator; [2] advised Plaintiff to commit to taking steps necessary to maintain a civil tone with coworkers; and [3] warned Plaintiff that additional such incidents "may lead to further disciplinary action."

** See United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72.

Click here to access the text of the decision.